Criminal Justice and Privatisation: Key Issues and Debates [1 ed.] 1138330930, 9781138330931

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CRIMINAL JUSTICE AND PRIVATISATION

Over the past few years, opposition to the privatisation in public services in the United Kingdom and elsewhere has grown, especially in areas related to criminal justice. Privatisation has existed within the British criminal justice system at least since the early 1990s, but the privatisation of the Probation Service in 2014 was a signifcant landmark in this process and signalled a larger programme of privatisation to come. Criminal Justice and Privatisation works to examine the impact of privatisation on the criminal justice system, and to explore the potential effects of privatising other areas including the police and the security industry. By including chapters from practitioners and academics alike, the book offers an expansive overview of the criminal justice system, as well as observations of the effect of privatisation at ground level. By also exploring the way the private companies are paid, how they operate and what private companies do, this book offers an insight into and the future of privatisation within the public sector. Written in a clear and direct style this book will appeal to students and scholars in criminology, sociology, cultural studies, social theory and those interested in learning about the effects of privatisation. Philip Bean was formerly a probation offcer in the Inner London Probation and After Care Service (until 1970) before taking up appointments for the Medical Research Council. He is now Emeritus Professor of Criminology and Criminal Justice at the University of Loughborough. He is the author/editor of over 30 books and of numerous papers in learned journals mainly on mental disorder and crime, and drugs and crime, but also on other matters in criminology namely criminological theory.

CRIMINAL JUSTICE AND PRIVATISATION Key Issues and Debates

Edited by Philip Bean

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 selection and editorial matter, Philip Bean; individual chapters, the contributors The right of Philip Bean to be identifed as the author of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identifcation and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Bean, Philip, editor. Title: Criminal justice and privatisation : key issues and debates / edited by Philip Bean. Description: 1 Edition. | New York : Routledge Books, 2020. | Includes bibliographical references and index. Identifers: LCCN 2020001106 | ISBN 9781138330931 (hardback) | ISBN 9781138330948 (paperback) | ISBN 9780429447525 (ebook) Subjects: LCSH: Criminal justice, Administration of . | Privatization. Classifcation: LCC HV7419 .C7462 2020 | DDC 338.4/7364—dc23 LC record available at https://lccn.loc.gov/2020001106 ISBN: 978-1-138-33093-1 (hbk) ISBN: 978-1-138-33094-8 (pbk) ISBN: 978-0-429-44752-5 (ebk) Typeset in Bembo by Apex CoVantage, LLC

CONTENTS

List of Contributors 1 Criminal justice and privatisation: introduction Philip Bean

vii 1

2 Probation for proft: neoliberalism, magical thinking and evidence refusal Peter Raynor

18

3 Electronic monitoring, neoliberalism and the shaping of community sanctions Mike Nellis

32

4 Who needs experts? The commercialisation of the probation ideal Maurice Vanstone

48

5 The gift relationship: what we lose when rehabilitation is privatised Lawrence Burke and Steve Collett

62

6 Through the Gate John Harding

82

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7 The role of payment by results in privatising the probation service Russell Webster 8 Privatisation of policing: objective reform, ideological revolution or subjective revenge and retribution? John G. D. Grieve

99

114

9 Private security and the privatisation of criminal justice Adam White

127

10 Privatisation, marketisation and the penal voluntary sector Mike Maguire

142

11 Contracts, compliance, care and control: the experience of privatisation in one probation trust Martin Graham 12 Does it work? Does it pay? Nigel Whiskin 13 Legitimacy in probation and the impact of Transforming Rehabilitation John Deering

159 175

188

14 What does privatisation mean for probation supervision? Jane Dominey

203

15 Privatization of criminal justice in Eastern Europe Simonas Nikartas

215

16 Privatisation of criminal justice in Australia Marietta Martinovic, Marg Liddell and David Daley

231

17 Correctional privatization in the United States Brett C. Burkhardt and Story Edison

245

Index

259

CONTRIBUTORS

Philip Bean was formerly a probation offcer in the Inner London Probation and After Care Service (until 1970) before taking up appointments for the Medical Research Council. He is now Emeritus Professor of Criminology and Criminal Justice at the University of Loughborough. He is the author/editor of over 30 books and of numerous papers in learned journals mainly on mental disorder and crime and drugs and crime, but also on other matters in criminology namely criminological theory. Lawrence Burke is Professor in Criminal Justice at Liverpool John Moores University and specialises in the areas of probation research, policy and practice. He has a particular interest in the way that occupational culture acts out in probation settings and resettlement provision for released prisoners. As a former probation practitioner, he has considerable experience working in both community and custodial settings. He was editor of Probation Journal from 2007–2016 and is on the editorial board of the European Journal of Probation. Brett Burkhardt is Associate Professor of Sociology in the School of Public Policy

at Oregon State University. His research examines the exercise of coercive power by legal and quasi-legal authorities. Brett teaches courses for upper-level undergraduate and graduate students in the areas of law, crime, public policy and research methods. His work has been published in a variety of outlets, including Criminology & Public Policy, Punishment & Society, Criminal Justice Policy Review and Police Quarterly. Steve Collett worked for three North West probation areas across four decades, retiring from the Cheshire Probation Trust in December 2010 after 10 years as its Chief Offcer. He is an honorary fellow within the Department of Sociology, Social

viii Contributors

Policy and Criminology at Liverpool University, an honorary reader in criminology within the School of Law at Manchester University and an honorary fellow of Liverpool John Moores University. He has been a member of the Probation Journal editorial board for over 20 years. David Daley was appointed Director of Community Corrections in Western Australia in 1994. David has taught as a visiting lecturer in criminal justice at Edith Cowan University, Perth, Western Australia, and since retirement from the workforce in 2012 has been a sessional lecturer in justice studies at RMIT University in Melbourne, Victoria. David’s professional interests include restorative justice and the development of risk assessment methodologies. John Deering is Reader in Criminology and Criminal Justice at the University

of South Wales. His areas of interest for teaching and research are probation and the youth justice system. He is a former probation offcer and manager and social worker with young people in the criminal justice system. John previously taught trainee probation offcers and was course leader for the diploma in probation studies for several years. Jane Dominey is a senior research associate at the Institute of Criminology,University of Cambridge. Her research interests include probation practice, probation policy, community supervision and the role of the penal voluntary sector. She is involved in work and teaching that brings practitioners and academics together to develop and debate policy and practice. She previously worked as a principal lecturer on probation training programmes and, for 10 years before that, as a probation offcer. Story Edison is currently a PhD candidate in the Department of Sociology at Ohio State University. Broadly, her research interests include incarceration, juvenile delinquency and the school-to-prison pipeline. Her current projects investigate how in-prison social networks infuence prison experiences and the relationship between verbal intelligence and the school-to-prison pipeline. Martin Graham is a retired chief executive, Norfolk and Suffolk Community Rehabilitation Company. He had a 40-year career in the Probation Service starting in 1976 as a probation offcer with West Midlands Probation Service. Martin was also for several years the chair of GMB SCOOP, the trade union which represents chief offcer grades in the Probation Service. John Grieve joined the Metropolitan Police Service (MPS) in 1966. He is currently Professor Emeritus and Honorary Doctor of Law at London Metropolitan University, and an honorary fellow at Roehampton Institute, Surrey University. He served as a police offcer and detective throughout London, including in the Central Drug Squad, the Flying Squad, the Robbery Squad, as a Murder Squad senior investigator

Contributors ix

and as a staff offcer to the head of London’s CID. He has also researched, and has written over 35 articles and chapters. John Harding was in the probation service for 37 years. From 2007 to 2012, John

worked for the European Union as a criminal justice expert advising governments in Russia, Turkey and Serbia on alternatives to prison. He has also served as a trustee or chair for a number of non-governmental agencies including the Youth Advocates Program in the United States, Addaction. He has written extensively on alternatives to prison and was appointed a CBE in the Queen’s Birthday Honours list in 2001 for services to Probation. Marg Liddell is Associate Professor in Criminology and Justice studies at RMIT

University. She is an experienced child protection and adult criminal justice worker and specialises in teaching skills for students aiming to work in criminal justice settings. Her research has focused on the experience of young women in the child protection system, of minority groups in the criminal justice system, the gender of money and family violence and teaching practices in prisons. Mike Maguire is a part-time professor of criminology, University of South Wales,

and Professor Emeritus, Cardiff University. He was formerly a member of the Oxford University Centre for Criminology. His research and writing have covered many aspects of the criminal justice and penal systems, including policing, prisons and probation. He is a member of the Correctional Services Accreditation and Advice Panel and a former member of the Parole Board of England and Wales. Marietta Martinovic is a senior lecturer in criminology and justice at RMIT University in Melbourne, Australia, and recipient of the Sir John Minogue Medal. Before becoming an academic, she worked as a community corrections offcer for Corrections Victoria for four years. Over the last 16 years, Marietta has presented and published numerous papers on electronic monitoring. Marietta has received two RMIT Teaching Excellence Awards in 2017. Her key research interests are electronic monitoring, incarceration and teaching in prisons. Mike Nellis is Emeritus Professor of Criminal and Community Justice in the Centre for Law, Crime & Justice, Law School University of Strathclyde. He was formerly a social worker with young offenders in London, has a PhD from the Institute of Criminology in Cambridge, and was involved in the training of probation offcers at the University of Birmingham. He has written widely on the fortunes of the Probation Service, alternatives to imprisonment and particularly the electronic monitoring of offenders. Simonas Nikartas is a researcher in law and criminology, holding a position as Head of the Criminal Justice Research Department and Senior Researcher of Law Institute

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of Lithuania. Simonas is a member of the Lithuanian Society of Criminology and former president of that organisation. He is also a member of the Community Sanctions and Measures working group of the European Society of Criminology. He has been the criminological and legal expert for numerous legal drafts. Peter Raynor is a former probation offcer and is currently Research Professor

in the Department of Criminology at Swansea University, where he has worked since 1975, including periods of volunteering with the probation service and with victim support. He has carried out research in youth justice, substance misuse, social work education, reintegrative justice and particularly the effectiveness and impact of probation services. Peter has served on two research assessment exercise panels and is a fellow of the Academy of Social Sciences. Maurice Vanstone is currently Emeritus Professor of Criminology at Swansea

University. He is the author of numerous articles, chapters and books, and has had experience of probation practice and training, and teaching and research on community sentences over a 50-year period. His work has been published internationally in, amongst other places, China, Finland, France and Romania. Russell Webster is the author or co-author of over 40 national publications on issues relating to drugs, alcohol and offending. Since 1996 Russell has worked fulltime as an independent consultant specialising in the felds of substance misuse and crime. He is also a health education authority certifed trainer. Russell developed the country’s most popular blog in the justice sector where he keeps readers up-todate with the latest developments in drugs and crime. Nigel Whiskin trained frst as a building manager and developer. In 1988 Nigel was Chief Executive of Crime Concern where he set up a national crime prevention organisation to simulate efforts to prevent crime and create safer communities. In Crime Concern Nigel also developed restorative justice for resolving disputes in social housing, behaviour problems in schools, communities and custodial establishments and for dealing with street crime. From 1988 to 2003 Nigel was a member of the European Forum for Urban Safety. Adam White has been a senior lecturer in criminology in the Centre for

Criminological Research, School of Law, University of Sheffeld since 2016. Before arriving in Sheffeld, he was a lecturer and then senior lecturer in public policy in the Department of Politics, University of York. Over the past decade, he has published 25 journal articles and book chapters on private security as well as one book, The Politics of Private Security: Regulation, Reform and Re-Legitimation.

1 CRIMINAL JUSTICE AND PRIVATISATION: INTRODUCTION Philip Bean

Introduction In this Introduction I want to give a brief overview of privatisation in criminal justice, generally, followed by a defnition of privatisation (and outsourcing) before looking at the contents of each individual chapter. A major aim and objective of the book is to examine the impact of privatisation on the criminal justice system, or more specifcally on some features of criminal justice within the community. It would not be possible to include all forms and aspects of criminal justice within one volume so inevitably some such as the Probation Service and Electronic Monitoring are given prominence. Recent events, however, in particular the privatisation of the Probation Service, have focussed attention on that service, especially on the way privatisation was introduced, the way it affected the Probation Service as a whole and the way it affected its probation offcers. Attention has also been given to the ways a newly formed privatised service related to and affected other parts of the criminal justice system including the Courts. In short it required a reevaluation of what we knew and thought we knew of privatisation. Inevitably, this has created interest and this volume goes some way to refecting that. The aim, however, is to go beyond that and include a discussion about privatising other areas including the police and the security industry as well as looking at what is happening elsewhere. For these purposes that means in Eastern Europe, Australia, and the United States. Even so, it is recognised that privatisation has or will affect other criminal justice community-based services, such as prison escort services and forensic psychiatric services to name but two, and that no single volume can capture the reach and depth of the subject matter. What is offered here goes some way to covering and including a selected area, but it is recognised that it covers only a small part of a very wide topic.

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Background to privatisation The privatisation of the Probation Service under Transforming Rehabilitation was introduced under the Offender Rehabilitation Act 2014. It raised again questions about the role and impact of the private sector within the criminal justice system. That the result of this privatisation programme was a failure, and formerly recognised as such, does not mean that other programmes will be cancelled, or that there will be no further attempts at privatisation. Privatisation in one form or another is likely to remain, at least for the immediate future. Privatisation in criminal justice is not new; it was very much an accepted phenomenon of the 18th and 19th centuries. Only in the latter part of the 19th century did public ownership become dominant. For example in the 18th century James et al. note that every transport feet that set sail from England after 1788 with its cargo of convicts bound for Australia operated under contract from the British Government.1 These ships were foating prisons but they nonetheless had detailed specifcations laid down for the contractors on every aspect of the voyage, to the size of the rations and the number of lifeboats. James et al. also note, perhaps somewhat prophetically, and directly foreshadowing present-day contracts, that agents were employed by the government to keep an eye on the conditions and treatment of the convicts throughout the voyage.2 In the 19th century prisons and madhouses in Britain were also part of the private sector, and remained so at least until prisons were nationalised in 1878. The Probation Service too was in private hands for most of its early years, only being fully nationalised in 1948. The criminal justice system, therefore, as a bulwark of public service is a relatively new phenomenon. There is no clear point in time at which one can say the early forms of privatisation of criminal justice in Britain disappeared, nor any point at which they reappeared. In Britain one of the earliest and most prominent examples of what we can now call the reappearance of the private sector in criminal justice, or rather the reprivatisation of aspects of criminal justice, came in 1988 with a Government Green Paper Punishment Custody and the Community. This was under a Conservative Government, and it set out various proposals for the management of community penalties. More interestingly it asked “how might the private sector contribute”? One suggestion was to set up a new organisation to introduce punishment in the community. It would not itself supervise offenders or provide facilities directly, but would contract with other services and organisations to do so.3 These were all part of a thrust towards bringing new ideas into the public sector, such as competition and management, key features of any privatisation programme. Further, in November 1992, in his Autumn Statement, the Chancellor of the Exchequer, Norman Lamont, introduced the Private Funding Initiative (PFI). which aimed at increasing the involvement of the private sector in the provision of public services. Its centrepiece was to develop public-private partnerships. In November 1992, as a result of that initiative a number of prison-related services were market tested, including Court escort services and prison educational services. PFI which developed into PPP (a variation on the way the projects are funded) provided the

Introduction

3

framework under which privatisation could develop. The PFI initiative was aimed at encouraging all government departments to explore actively the scope for the use of private fnance.4 The PFI initiative, alongside other aspects of privatisation were part of an ideological drive towards reducing the size of the state. This was not a party/political matter. The Labour Governments which followed in the late 1990s were as eager as the Conservative Governments before them. Even so, from the outset there was considerable opposition, seemingly heavily infuenced by political consideration, those opposing coming from the left side of the political spectrum. Not entirely, but suffciently often to see it in those terms. For example, trade union organisations such as the National Association of Probation Offcers (NAPO) and the Prisoner Offcers Association (POA) were implacably opposed to privatisation, whereas organisations such as the Adam Smith Institute traditionally has been a strong supporter. Aside from any such political considerations there were pragmatic reasons for introducing privatisation into criminal justice. They were about introducing a more competitive spirit into the public sector, introducing new forms of management and about reducing costs. Again, it is diffcult to pinpoint exactly where and when this demand arose. Some suggest the fnancial crises of 2008 produced the major impetus, others much earlier. Some point to the increase in crime and an increasing cost of criminal justice, mainly due to a rise in the prison population, and the demands for cost effectiveness due to the increasing costs of incarceration. Others say it was due primarily to American infuence and the cost of incarceration in America. James A et al. certainly saw it this way. They say “The most decisive consideration infuencing the appeal of private sector management of prisons (in the USA) was cost.”5 The American situation was nothing if not dramatic, with the growth in the prison population in 1980 reaching 196% of capacity. This growth was not just propelled by rising crime rates, but also by diminishing support for rehabilitative strategies, and an accentuating demand for a more punitive approach to offenders. Certainly, America was frst in the privatisation feld, especially with the private prisons. These were introduced in the 1980s in a climate no longer receptive to public ownership, where a rising prison population was placing considerable strain on local fnances.6 Australia followed in 1990, frst in Queensland, later in other states. As did France, in 1992, in Belgium in 1994 and later in Germany. In Britain the frst private prison, The Wolds was opened on 6 April 1992. In Britain the prison population also climbed throughout the 1970s and 1980s, rising from 36,774 in 1973 to 49,949 in 1988. It was not just its size that caused concern but the quality of the prisons themselves, the levels of overcrowding and insanitary conditions. One report in 1986 described conditions as ‘intolerable’, another said they were ‘degrading’ and ‘insanitary’. Added to this was the powerful Prison Offcers Association who had excessive infuence over working conditions, staffng levels and overtime – staff costs in prisons amount to 80% of all running

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costs. Clearly something had to be done. Privatisation was seen as a solution, if not the complete answer then one that was thought to be worth trying. Whatever the origins of privatisation generally, and in criminal justice in particular its growth and reach over such a short period has been impressive. This is especially so in the United States. In spite of a dearth of aggregated data on the size of the markets in criminal justice, since the advent of the frst privatised prison in 1983, private correctional facilities have become commonplace. There, in 2015 over 8% of the total prison population of 1.53 million were housed in private-run facilities. In the UK 14 prisons in England and Wales and a further 2 in Scotland are currently run by 3 private companies – large international companies which were involved in the privatisation of probation. These resulted in 19% of the prison population in the UK being in privately run jails.7 Add to these the Community Rehabilitation Companies (CRCs) who were responsible for the supervision of a large proportion of offenders on probation and this gives some idea of the impact of privatisation in recent years. Still further are the companies providing outsourcing facilities; for example all of the electronic monitoring provisions are privately operated. Interest and the growth of privatisation within criminal justice has been added to by the privatisation of the Probation Service in 2014.8 The initial proposals, and the subsequent privatisation programme received a storm of protest, the most forceful being that privatisation was ethically wrong, and that the programme itself was ill conceived. Supporters, such as there were, saw the privatisation of probation as a way of bringing down costs, introducing private sector–style management, and introducing new ideas to an otherwise infexible public service. Certainly, the cost of the Probation Service was being seen as excessive; it increased from £186.8m in 1985/6 to £286.7m in 1990/1 yet the average caseload per offcer dropped from 22.5 to 15.6 during this period and the average number of reports completed by main grade offcers also dropped from 69.1 to 50.9.9 The government’s solution was to increase the role of the private sector as the way of reducing expenditure. This privatisation strategy has brought a new and wide range of market disciplines to the public sector. In so doing it has also introduced a similarly wide range of quasi-markets into that sector hitherto free of the demands of market forces. Concepts such as ‘purchaser/provider’ were introduced with consideration given to obligations to satisfy ‘customers’, and for providers to provide services at the lowest cost. Opponents argued that such an approach was unacceptable and inappropriate. They say the public sector especially that of criminal justice does not produce markets but provides a statutory service. Privatisation has brought forth a ferce debate on the merits and demerits of introducing private sector demands into the public sector. This is especially so when introduced into the criminal justice system whereby criminal justice is seen to have extenuating features not found elsewhere. The debate is complex, and raises basic questions about accountability of the private sector within a public service, and questions about whose interests the private sector serves, or indeed whether the private sector meets public sector goals.10 Supporters of privatisation talk of

Introduction

5

its benefts to the criminal justice system in that it introduces improvements to an erstwhile sclerotic system. Critics say this is not just destabilising but conceptually and ideologically upsetting.11 They say markets cannot be transposed onto a public sector which has different aims and objectives. The point is made by Sarah Vine when she says “The public are not customers. They are citizens.”12 Accusations are made against supporters of privatisation that the pursuit of proft has no place within criminal justice. This was a constant form of attack over privatisation of the Probation Service. For example, Alan Bennett the playwright states proft should not come into probation. He said the satisfactions of the Probation Service are not fnancial ones nor should they be, they are the rewards of dedication and service.13 Yet the point made by Charles Logan is instructive here. He says the proft motive is no more insidious than any other economic motive, nor is it confned to organisations that formally defne themselves as proft seeking. He asks is it wrong for state employees to have a fnancial stake in say, the prison system? “The notion that any activity carried out for proft is thereby tainted is simply an expression of prejudice. Both are economic motivations.”14 And in a similar vein Don Hutto says the proposition that profting from people’s misery is immoral conveniently ignores the fact that proft centres around all human endeavour and criminal justice is no exception. Following from Charles Logan, Don Hutto asks “What of those who make their careers as prison offcers, judges, police offcers, probation offcers and governors? Do they do so without remuneration? Is it a prerequisite that all who participate in the criminal justice system must do so without monetary gain?”15 The debate has of course been given new impetus by the privatisation of probation. Opponents said it confrmed their worst fears; that privatisation was a costly error, and that which was associated with privatisation, such as Payment by Results, or Through the Gate services for offenders released from prison was unworkable. Certainly, supporters of privatisation have found this to be a diffcult example to defend; there have been too many aspects which have failed, notably the way it was introduced without piloting and without an initial cost effective survey. Report after report brought out its failings, one of which was the inability of the Justice Secretary to justify the approach being taken and the impact on those receiving a privatised service. Certainly, privatisation of probation was an ill-conceived exercise doomed to fail. It has shifted the parameters of the debate as many contributors to this volume testify. It has also shown that involvement in criminal justice is a complex business that should not be undertaken lightly. Nonetheless, the debate itself has rumbled on for a long time, and often conducted in straightforward binary terms with supporters and opponents lined up in an uncompromising manner. Too often it has taken place under a set of irreconcilable beliefs where one side stands frm against all arguments presented by the other. Yet as will be shown in some of the chapters in this volume, privatisation in criminal justice involves political, social and fnancial considerations far beyond the simple binary debate in which it has often hitherto been conducted. There are no such clear-cut divisions as were once thought and few answers, making it all the more

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diffcult as there are too few research studies which give direction to politicians, fnanciers and other interested parties. Hucklesby and Lister (2018) also make the point that the extent to which public and private sectors can be simplistically characterised in such a crude binary comparison has become increasingly questioned. They say a series of political and economic transformations have led to a blurring of the boundaries between the two sectors, resulting in the public-private distinction becoming less clear and conceptually more complex. They give examples where there has been widespread crossover between the two sectors and adoption of management techniques within the public arena. These examples are given support by contributors to this volume, especially from those who have worked extensively in both public and private sectors. Incidentally, little consideration seems to have been given to the views of the offenders who are likely to be or have been the recipients of the privatised services. What is their view of private-sector employers working in the public sector, enforcing discipline and handing out punishments? In my own study on the impact of privatisation in the Probation Service I asked a small number of offenders on probation about whether they considered it important as to who were the employers of their probation offcers? Their answers were unequivocal; all said it did not matter. What was important to them was the quality of the service provided and the fairness of the decisions.16 It was a pragmatic view similar to that of Ken Pease who said “If contracts can be written in ways which make desirable change more likely let’s debate how the contracts can be written.”17 An equally sanguine approach comes from Thomas and Logan. They say correctional privatisation is not new and never will be a panacea for the problems confronting the nation’s correctional systems. It is nothing more and nothing less than an alternative means by which governments can provide an essential public service.18 That of course will not end the debate, nor should it, and it continues and reappears in many of the following chapters. Inevitably, in the light of recent events the privatisation of the Probation Service dominates this book. Various features of the privatisation programme are discussed, and in ways that offer new ways of thinking about the impact of privatisation on a criminal justice service. The book however is not just about probation; other aspects of the criminal justice system are included, although of course not everything could be covered. Nor is it just about the UK; included are contributions about European, Australian and American systems which provide added dimensions to the debate. What of the future? Privatisation was introduced in other public works such as schools, as well as in other areas of infrastructure, and for numerous reasons. For example, it was introduced to the Railways primarily to increase capital investment, to the Post Offce to increase effciency, and into the Probation Service to increase competitiveness. It has grown exponentially, especially in the decade following 2010. In January 2018 the National Audit Offce reported that there were currently over 700 operational PFI (and PF2 deals) with a capital value of around £60 billion and with annual charges for these deals amounting to £10 billion in

Introduction

7

2016/7. Even if no further deals were entered into, further charges would continue until the 2040s amounting to £199 billion.19 Yet there are signs that the initial enthusiasm for privatisation may be decreasing, although it is not clear how and to what extent this may be so. In his Budget Speech on 29 October 2018 the Chancellor, Philip Hammond, said that although he remained committed to the use of public-private partnerships, especially where they delivered value for the taxpayer, there was compelling evidence that the PFI/ PF2 model has failed. He announced, somewhat surprisingly, that the government would abolish the use of PFI and PF2. Yet although the PFI/PF2 model has its critics, in reality a new model along similar lines will eventually replace it. That new model will continue to encourage the private sector to fund public infrastructure projects, for without private fnance it would not be possible to build the infrastructure necessary to operate in modern Britain. Over the years opposition to privatisation has grown, especially to that in criminal justice, with an increasing disillusionment with private sector involvement. For example, in September 2018 the Shadow Justice Secretary talked of “the dangerous consequences of the ever greater privatisation of our justice system”.20 This followed a damning report on Birmingham prison where the inspectors were overwhelmed by the smell of cannabis which led to the prison being taken from a private company G4S and returned to the public sector. There has also been a growing list of contractors that have been awarded private-sector contracts only to have them handed back after some form of disaster and disgrace. From the collapse of the East Coast Rail franchise to the liquidation of Carillian – a large company almost wholly dependent on public-sector privatisation contracts – privatisation in its many guises is seen as in crisis. “An industry that (had impetus) with Margaret Thatcher’s privatisation wave and was turbocharged under Tony Blair faces what may be its bleakest period yet.”21 Its full demise may still be some way off. For whilst the National Audit Offce may be equivocal (“There is still a lack of data available on the benefts of private fnance procurement”) of the prisons rated as ‘excellent’ by the Ministry of Justice in that report, two were in the private sector and quite a lot of G4S prisons were also well rated.22 Moreover, the failure of Carillian is seen as much a failure of management as of the privatisation programme. It was said that Carillian was heading for trouble when it began making acquisitions of other companies such as Alfred MacAlpine (for £554m) and John Mowlem (for £35m). While sales increased, earnings per share were virtually static. It failed because acquisitions did not deliver earnings growth.23,24,25,26,27

A defnition of privatisation ‘Privatisation’ is a term often used to include any form by which the government intervenes in the private sector. It is often used interchangeably with ‘outsourcing’. As used here I want to be rather more specifc and talk of privatisation as occurring when the whole or part of the public sector has its business and its assets transferred

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Philip Bean

to a commercial company. That commercial company will not be accountable to the public, Parliament or its Ministers, but to its shareholders. If the whole of the assets are transferred this can be called ‘full’ privatisation in which case the company takes over lock, stock and barrel all the assets, as with the privatisation of some water companies or electricity companies. Even so these companies often work to regulators (OFWAT for example) who determine such matters as pricing, service standards etc. Whether so or not, we can say that full privatisation occurs when all profts go to shareholders. Also, in ‘full’ privatisation the company raises its own capital and income streams, and uses them to fnance whatever it chooses to undertake. It is more or less free of interference from government, that is, apart from whatever regulatory framework is imposed by legislation. If only a section of the assets are transferred this still falls within the remit of privatisation, as defned here, albeit that it comes in less than the full version. Privatisation differs from outsourcing. Whereas privatisation occurs when the private company owns the assets, outsourcing occurs when private companies sell their products to the private sector in the same way as they sell their products elsewhere. Generally speaking there are two types of outsourcing. The frst is where a government agency such as the Probation Service is required to purchase the product, and the second type is where that government agency has a choice about whether it wishes to purchase. We can link privatisation and outsourcing by placing privatisation on the top of a scale, called Level 1, and outsourcing on Levels 2 and 3. An example of Level 2 would be where a private company sells ‘tags’ to be placed on offenders, and the product, ‘tagging,’ is purchased by a government agency such as the Probation Service which uses them as part of its legislative duties. An example of Level 3 would be where the Probation Service purchases, say, drug-testing equipment, or drug programmes from a private contractor, and may or may not operate these themselves. All three of these levels occur here, although we shall be concerned mainly with Level 1. Inevitably there are different types of Level 1 privatisation, some less ‘full’ than others, but all fall within this general defnition. The government may regulate the enterprise through legislation and through contracts or franchises, or, it may hold the assets and make them available on certain conditions, or simply pay for the service through the Private Finance Initiative. Or in some circumstances it may allow a private company to manage the buildings or other assets and employ the staff as in the case of private prisons (Faulkner D pers. com). These all come within the defnition of privatisation.

The structure of the book The frst four chapters are dominated by the privatisation of probation and some of the implications thereof. The probation privatisation programme caused much disquiet and concern from various quarters, whether from those who saw the Probation Service as the embodiment of a set of values which championed a certain

Introduction

9

type of humanistic approach in criminal justice, or those who saw the programme as a failed attempt to introduce private practice into a hide-bound public sector. In Chapter 2 Peter Raynor is concerned not with the details of the Transforming Rehabilitation project’s achievements and (mainly) failures but with the political culture and policy assumptions which made it a thinkable project for a particular type of politician. He describes how several developments in British political thinking, mainly but not exclusively in and around the Conservative Party, encouraged the mistaken belief that such a high-risk privatisation project would be a success. He points in particular to the centralisation and politicisation of probation policy in the current century, to exaggerated political faith in the benefts of free markets and the private sector and to the readiness of key politicians to act on the basis of blind faith and magical thinking rather than evidence. He traces the roots of these tendencies, and of the associated scepticism about state-funded welfare, to the neoliberal tradition in British politics which, he argues, has made it particularly diffcult for some politicians to understand the value and purposes of probation. The combination of magical thinking and evidence refusal leads to poor decisions, perverse incentives and bad policy, as the short but destructive history of Transforming Rehabilitation demonstrates. Chapter 3 by Mike Nellis is mainly about community sanctions which he says are born and shaped by wider social (political, economic and cultural) circumstances. The humanistic ethos defned by probation throughout the 20th century does not have a constant character. Historically, they have been delivered directly by state agencies, sometimes subcontracted to voluntary organisations. The advent and expansion of electronic monitoring (EM) in the late 20th century complicated this, particularly in England and Wales. Not only was the remote monitoring of offenders’ presence in their own homes devoid of the humanist and relational character of probation, the then Conservative Government wanted it delivered by a separate commercial body. This set up lasting antagonisms between the Probation Service and EM, which intensifed as the precepts of neoliberalism eroded the social democratic foundations on which the postwar Probation Service had been built, and increasingly infused digital technology into all aspects of business, governance and everyday life. Under the Conservative-led coalition government between 2010– 2015 a concerted effort was made to downgrade probation (by privatising most of it) and upgrading EM (by switching to large-scale GPS tracking). Neither of these ill-conceived developments proved viable, but a return to a renationalised Probation Service does not guarantee a return to its earlier character, and it seems reasonable to think that the supervisory relationships within future community sanctions will be mediated by technology, possibly using smartphones, which are being specifcally reconfgured as a versatile new form of EM. Chapter 4 by Maurice Vanstone is entitled “Who Needs Experts?” This chapter focusses less on the process of the privatisation of the Probation Service and more on how the principles of public service have been undermined by successive governments. In so doing, it traces briefy the history of privatisation within the penal and criminal justice systems, elaborates on its social and political context, rehearses

10 Philip Bean

the arguments for and against the deployment of the private sector in the criminal justice feld, offers an explanation as to how workers adjust to being transferred from public to private-sector environments, and delineates some important features of probation as a reconstituted public service. Chapter 5, by Lawrence Burke and Steve Collett again focusses on the privatisation of the Probation Service in England and Wales, but rather than debate the cost, structural and effciency arguments of privatising such a service, the authors concentrate on the moral and ethical issues of privatisation. They do so through the lens of what they call the operational realities and the experience of individual users and workers engaged in the rehabilitative endeavour. They argue that cost and effciencies, rather than being delivered through the market, can also be the outcomes of pursuing what is effectively a moral and humanistic enterprise. The authors draw on the pioneering work of Richard Titmuss’s analysis of blood donor systems in the late 1960s to argue that the very notion of altruism – the right to give both enhances the quality of life in communities as well as the capacity of individuals who commit crime to make good. By focussing on the sentencing process, the contribution of civil society and the importance of occupational cultures and professional ethics, the authors argue that a privatised system of criminal justice supervision is not only ineffective in terms of the outcomes society wants but tends to make the most disadvantaged and marginalised pay the heaviest price. The next two chapters concentrate on two aspects of the privatisation of probation which were seen as central to its success. They were Through the Gate services and Payment by Results. These were two of the fve listed aims, the others were to split the Probation Service into a National Probation Service and Community Rehabilitation Companies, to open up the market to a range of providers and to introduce a new Institute of Probation. The frst two, examined here were expected to provide the mainstay to the programme. In Chapter 6 John Harding examines ‘Through the Gate’ services designed for prisoners serving less than 12 months’ imprisonment. Through the Gate services were to provide each prisoner with an after-care programme, where the prisoner would be seen at the beginning of the sentence, during the sentence and just before release. As John points out the research evidence is such that many of those serving less than 12 months’ imprisonment are the most vulnerable and most needy within the prison system and most likely to reoffend. John is highly critical of the way Through the Gate services were introduced. The frst problem was that the then Justice Secretary, Chris Grayling commissioned 21 Community Rehabilitation Companies, the majority of whom were private companies with little or no experience to manage and supervise these short-term offenders on release from prison. The experiment was not evidentially based, it was not piloted and not properly costed. This chapter is an account of what went wrong culminating to the point where the current Secretary of State for Justice has decided to relinquish private company contracts and return the overall management of those serving less than 12 months’ imprisonment to the National Probation

Introduction

11

Service. Practice failings indicate that short-term prisoners lacked support in crucial areas of offender rehabilitation – accommodation, employment, training and education. The author sought the opinions of key stakeholders from the Ministry of Justice and NGOs as to what happened to the Through the Gate experiment and importantly, the voice of users themselves as to how they experienced support services or the lack of it. Their testimony bears witness to what went wrong in terms of service delivery by the CRCs and what needs to be done in the future through initiatives which are sustainable, planned and deliverable by a multiagency approach. Chapter 7 by Russell Webster is on Payment by Results (PbR). This is the second of the fve listed aims in the privatisation programme. PbR was portrayed by the Treasury as something of a magic bullet in ensuring that the companies delivering outsourced public services in the UK were providing value for money. Russell examines the evidence for these claims before analysing the impact of the Ministry of Justice’s decision to make PbR a key component of the part privatisation of the Probation Service under its demonstrably failing ‘Transforming Rehabilitation’ initiative. Russell dissects the private probation companies’ performance against PbR targets before considering whether PbR can be a useful approach to measuring the performance of probation services. He concludes by questioning whether reconviction rates can ever be a reliable measure of probation effectiveness and whether PbR might fnd a home in other parts of the criminal justice sector. Chapters 8, 9 and 10 are on policing, private security and the voluntary sector, all ostensibly outside the mainstream of the current privatisation debate yet showing how far privatisation has entered the criminal justice system. In Chapter 8 John Grieve argues that there is no single explanation as to why there was a political imperative to change the character of British policing by introducing privatisation. Nor could he see an obvious motivation. This chapter is a ‘thought piece’ (Fitzgibbon 2013) but includes some very limited original research. This chapter compares and contrasts some aspects of privatisation of policing with the disastrous and failed experiences of privatising the Probation Service which were not heeded to and asks what lessons can be learnt. He examines their respective context and environment looking for some similarities despite differences and differences despite similarities. In the course of attempting to understand the many issues involved, some literature has been reviewed, and learning conversations/ autodidact opportunities conducted about the sensitising concepts of austerity, value for money, reform, professional values and most especially ethics, competition, completion, risk, blame, and their use in ‘language games’ (as developed by Manning 2014) are explored. A chronology of some policing crises is included. The chapter concludes that signifcant aspects of professional ethics may not be the same for the public and private sectors. Moreover based on Patel’s model of strategy as power, purpose and principle and Freedman’s defnition the chapter considers the issue may have been more about the nature of success or failure in an ideological political strategy about power, as winning a confict between politicians

12 Philip Bean

and police. This was a power play as opposed to an objectively arrived at strategy based on principles and values. It is also concluded that the stated purpose about value for money as part of repairing the economy, in an age of austerity and creating cheaper public security and safeguarding, has not been achieved. In Chapter 9 Adam White explores the relationship between the private security industry and the privatisation of criminal justice. He traces not only how the industry has become interwoven with the transfer of criminal justice infrastructure and services from the public to the private sector, but also how it has contributed towards a much broader rebalancing of the public/private divide across the criminal justice landscape. He does this through a consideration of the demand for private security in the postwar era, how the private security industry has sought to satisfy this demand, and how the state has inserted itself into this economic relationship using a range of regulatory mechanisms. In this way, he illustrates how in certain parts of the contemporary criminal justice system the point at which the public sector ends and the private sector begins is now extraordinarily diffcult, if not impossible, to discern. In Chapter 10 Mike Maguire explores the impact of the privatisation and marketisation of criminal justice services on voluntary sector organisations (VSOs) and on the voluntary sector as a whole. Based on research interviews with over 200 stakeholders, he argues that the increase in competitive commissioning of such services, often in large-scale and tightly specifed ‘packages’, has produced ‘winners’ and ‘losers’, but that the impact for most has been negative. Hurt by ‘austerity’ and by reductions in traditional sources of funding, many have felt it necessary to bid for contracts in unfamiliar areas, sometimes as subcontractors to private companies. Relationships between VSOs have deteriorated, and some feel that they are losing touch with local communities. Efforts to look more attractive to commissioners have led to changes in management, organisational structure and culture, and working practices, in some cases raising concerns that the organisation has drifted away from its charitable ‘mission’ and ethos. While most interviewees felt that at present these risks could be handled, they were more pessimistic about the future of the sector, which was seen as becoming increasingly dominated by large, often ‘predatory’ quasi-businesses, and whose favourable identity and reputation could eventually come under serious threat. Chapters 11 and 12 are written by Martin Graham and Nigel Whiskin. They write from the perspective of those who have been managers in criminal justice organisations. Martin Graham, who was formerly a chief executive of a Community Rehabilitation Company, provides a perspective from the point of view of the chief executive’s role as chairman of GMB SCOOP. He was involved with the other Probation Trade Unions in negotiating with the Ministry of Justice about the protection of future terms and conditions for staff and the implementation of an Enhanced Voluntary Redundancy Scheme. Nigel Whiskin was for many years CEO of Crime Concern and also assistant consultant for Reliance Secure Task Management. He introduced Victim Support to Bristol and set up Restorative Solutions to make restorative justice available.

Introduction

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In Chapter 11 Martin Graham considers the huge structural and fnancial implications of the privatisation of probation. However, what can often be overlooked in all this is the human factor – what he calls the impact on staff and the recipients of the service being reformed. In this chapter Martin considers this impact of Transforming Rehabilitation from the point of view of Norfolk and Suffolk Probation Trust, a small, rural trust. He describes how it responded to the competition process and worked towards separating itself into the constituent parts of the National Probation Service and the Community Rehabilitation Company. He then considers how the CRC sought to manage the consequences of that separation under the ownership of Sodexo Justice Services. In this chapter Martin refects on some of the diffculties with the original competition process and the lack of clarity for bidders and on some of the implementation processes subsequently followed by Sodexo. It suggests that a more transparent and coherent approach with greater involvement of local management teams could have delivered a more successful implementation of the Transforming Rehabilitation process. Finally the chapter considers the reforms in the context of a longer period of probation reform and explores this in relation to the different meanings attached over the years to the terms ‘contracts’, ‘compliance’, ‘care’ and ‘control’. In Chapter 12 Nigel Whiskin writes from the perspective of his 50 years’ experience working to provide a range of services to the criminal justice system. This, he says has infuenced his thinking about who is best placed and best equipped to deliver criminal justice services. He says conclusions should not be based on political or institutional rhetoric, but rather on answers to the questions “does it work? Does it pay?” Nigel points out that fnding the answers to these questions is far from easy. Little research is readily available as to whether the services are working and whether they are a sound fnancial proposition for the taxpayer; commercial sensitives about delivery costs shroud it in secrecy. He proposes that governments should consider publishing annual reports that show how each contract is performing, what it costs including the costs of procurement and how the performance and costs compare with the services that the contract replaces. Only then, he concludes, can we have an informed debate about who is best placed and equipped to deliver such services. Brief descriptions of four apparently successful outsourced CJS contracts are provided: electronic monitoring, police custody suites, prisoner escorting and young offender institutions. There are three key themes that run though these case histories, namely how the business sector has redefned jobs in such a way that released thousands of trained police and prison offcers back to frontline duties for which they were trained, how business employed CJS experts in key roles thus ensuring high professional standards, and how business managed the projects to comply with robust contract regime, hence making them accountable to their commissioners. Chapter 13 by John Deering looks at questions of legitimacy of probation practice which he considers have been called into question by changes to probation

14 Philip Bean

imposed by central government in recent decades. These changes have aimed to change probation aims and practices and thereby, also its values. In brief this involves a fundamental shift from probation being a rehabilitative agency to one that concentrates more on law enforcement and reducing re-offending. In John’s view the values of most probation practitioners remain largely rehabilitative and this apparent mismatch may have called into question the commitment of practitioners to the (revised) values of the service. This in turn, could have reduced the legitimacy of probation practice and purposes in the eyes of many of its practitioners. Chapter 14 by Jane Dominey looks particularly at the practice of probation supervision and discusses the extent to which supervision delivered by private companies is inevitably poorer than that delivered by public sector bodies. Jane argues that probation supervision thrives in an environment where supervisor and supervisee build a change-enabling relationship, where the organisation provides a structure in which staff are supported and encouraged, and where the wider community provides the resources and opportunities necessary for recovery and desistance. She says the Probation Service has suffered the twin and entwined assaults of privatisation and austerity, and in this chapter she gives examples of ways in which the current environment for supervision is inadequate. Jane concludes that returning probation supervision to the public sector addresses some of the current problems but (unless accompanied by measures in areas like caseload management, staff training and fnancial support for partner organisations in the voluntary sector) would not be suffcient to guarantee high-quality supervision. The last three chapters have an international favour, one is about privatisation in Eastern Europe, the second concentrates on privatising prisons in Australia and the third and last is on the United States. Chapter 15 by Simonas Nikartas is entitled “Privatisation of Criminal Justice in Eastern Europe”. Simonas reviews trends in the privatisation of punishment in those European countries which he says have a common history, all having once been subject to communist control. This, he says has shaped the specifc political, cultural, economic and social context of that region. Simonas discusses the specifc factors involved in the privatisation of criminal justice in the region, reviews the attempts to privatise prisons and focusses mainly on electronic monitoring, this being the most common form of private sector involvement in criminal justice in the region. He concludes that EM has had the greatest use and impact on Eastern European countries’ privatisation programmes. Chapter 16 is by Marietta Martinovic, Marg Liddell and David Daley and is entitled “Privatisation of Criminal Justice in Australia”. The authors say Australia has embraced privatisation of its prisons with almost 20% of its prisoners in private prisons (‘The Productivity Commission’, 2019). To date, there is no conclusive evidence that privatisation of prisons has had a dramatic effect on the way the industry operates or its effectiveness. Over the years there have been three prisons which were inadequately managed by the private sector and were taken back by the public sector and put under public management. An innovative experiment that could change the landscape of offerings in the public and private prison sector

Introduction

15

in Australia is Ravenhall Correctional Centre – frst private prison operated on a payments by results model. Finally, Chapter 17 by Brett Burkhardt and Story Edison is about the situation in the United States. The authors say the modern era of correctional privatisation began in the United States in the 1980s. Today, the American private corrections industry is a multi-billion-dollar enterprise, with contracts to provide an array of services to a variety of governments. In this chapter entitled “Correctional Privatisation in the United States: Past, Present, and Future”, the authors review the research on the extent, performance and politics of correctional privatisation in the United States. They say the industry has expanded to incarcerate more than 128,000 prisoners in 28 states (plus the federal government). It has been increasingly important in the feld of immigrant detention, where roughly two-thirds of immigrant detainees are held in privately contracted facilities. Moreover, the industry has expanded further into community corrections, offering probation supervision, re-entry programs, drug treatment courses and electronic monitoring. This growth of the private corrections industry has occurred despite a lack of robust evidence that the private sector outperforms the public sector on quality or cost. It has also persisted in spite of organised opposition. Privatisation of corrections, which in reality means prisons, has become a partisan issue, with major Democratic politicians calling for a return to wholly public prisons. Labour unions, student groups and religious organisations have also mounted public pressure campaigns against the private corrections industry. Yet it would be premature to forecast the demise of private corrections in the United States. Several trends – including a greater focus on prisoner re-entry and a sustained crackdown on immigration – foretell a long future for the industry.

Notes 1 Detailed specifications were laid down for contractors on every aspect of the voyage. The cost and control continued after the convicts had landed. See James A, Bottomley A, Liebling A and Clare E (1997) Privatizing Prisons: Rhetoric and Reality. Sage Publications, pp. 10–11 for a more detailed account. 2 Taken from James A et al. (1997), p. 45. 3 See South N (1989) Criminal justice industries PLC? In Farrell M (ed) Punishment for Profit. ISTD, pp. 53–63 and HMSO (1988) Punishment Custody and the Community. (Green Paper). 4 The difference between PFI and PPP is the way the project is funded. PFI is where the project is funded by a private agency and paid for by the state. PPP is where public and private parties set up a joint venture capital company for a project with the parties each contributing. There are however a range of hybrid projects such as where a PFI project has a public sector shareholder on the board. 5 Quoted in Mair G and Burkel L (2012) Redemption Rehabilitation and Risk Management. Routledge, p. 148. 6 If England and Wales were to emulate the US level of imprisonment then by about the turn of the century this would mean 420,000 inmates in 710 prisons compared with 85,000 inmates in 140 prisons which is what we have nowadays. See Teague M (2012) Neoliberalism, prisons and probation in the USA and England and Wales. In Whitehead P and Crawshaw P (eds) Organising Neoliberalism: Markets Privatisation and Justice. Anthem Press, p. 73.

16 Philip Bean

7 Op. cit., p. 8. 8 Ibid., p. 4. 9 See Bean P T (2019) Probation and Privatisation. Routledge, for a discussion on the development of privatisation in the Probation Service and the impact of the report by Lord Carter. 10 Lister S and Hucklesbury A (2018) The private sector in criminal justice. In Hucklesbury A and Lister S (eds) The Private Sector in Criminal Justice, p. 2. 11 Ibid., p. 4. 12 See Steer T also in Business Section, The Sunday Times (6 Sept), p. 6. 13 Bennett T (2014) Foreword. In Statham R (ed) The Golden Age of Probation. Waterside Press. 14 Logan C (1987) Privatising Prisons: The Moral Case. Adam Smith Institute, op. cit., p. 1. 15 Hutto D (1989) Public agencies and private companies. Partners for progress. In Farrell M (ed) Punishment for Profit. ISTD, p. 23. 16 Pease K (1994) Forget the ideology. What could privatisation contribute to penal reform? In Martin C (ed) Contracts to Punish: Private or Public? ISTD, p. 18. 17 See Thomas C and Logan C (1993) The development, present status and future potential of correctional privatization in America. In Bowman G, Hakim S and Seidenstat P (eds) Privatizing Correctional Institutions. Transaction Publishers, p. 218. 18 National Audit Office (2018) PFI and PF2. PFI/PPP is a form of procurement where the public sector procures services over a prescribed concessionary period, perhaps 20 years, in a manner which leaves the risk of ownership with a private sector supplier. PFI/PPP is not the same as privatisation as in PFI/PPP the public sector retains ultimate responsibility for the service concerned. PF2 involves a reformed PFI model where, inter alia there are changes in the period of tendering, removal of soft services and changes in the position of government as a co-investor. 19 Quoted in Collingridge J (2018) Is the game over for the giants of outsourcing? The Sunday Times, p. 6 (16 Sept) (Business Section). 20 Ibid., p. 6. 21 Ibid. 22 Ibid. 23 NAPO (2012, October) Probation Privatisation and Accountability. Briefing Paper. 24 The Howard League for Penal Reform (2018) Corporate Crime? A Dossier on the Failure of Privatisation in the Criminal Justice System. Mimeo, p. 5 and Sarah Vine (2018, May 29) The Guardian. 25 See Logan C H (1990) Private Prisons: Cons and Pros. Oxford University Press. See especially Chapter 5. Issues of cost and efficiency. The quote here is from pp. 97–98. 26 National Audit Office (2018) op. cit., p. 14. 27 Logan C H (1990) op. cit., p. 117.

Bibliography Bean PT (2019) Probation and Privatisation. Routledge. Bowman G, Hakim S, and Seidenstat P (eds) (1993) Privatizing Correctional Institutions. Transaction Publishers. Canton R and Dominey J (2018) Probation (2nd ed.). Routledge. Collingridge J (2018) Is the game over for the giants of outsourcing? The Sunday Times, 16 Sept, p. 6 (Business Section). Farrell M (ed) (1989) Punishment for Proft. ISTD. Fulton R (1989) Private sector involvement in the remand system. In Farrell M (ed) Punishment for Proft. ISTD, pp. 1–11. Home Offce (1988) Punishment custody and the Community. (Green Paper) HMSO. Howard League for Penal Reform (2018) Corporate Crime? A Dossier on the Failure of Privatisation in the Criminal Justice System. Howard League (May).

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Hucklesbury A and Lister S (eds) (2018) The Private Sector and Criminal Justice. Palgrave MacMillan. Hutto TD (1989) Public agencies and private companies – Partners for progress. In Farrell M (ed) Punishment for Proft. ISTD, p. 19. James A, Bottomley A, Liebling A, and Clare E (1997) Privatizing Prisons: Rhetoric and Reality. Sage Publications. Lindsey A, Mears D and Cochran J (2016) The privatisation debate: A conceptual framework for improving (public and private) corrections. Journal of Contemporary Criminal Justice. Vol. 32, No. 4, pp. 308–327. Lister S and Hucklesbury A (2018) The private sector and criminal justice: An introduction. In Hucklesbury A and Lister S (eds) The Private Sector and Criminal Justice. Palgrave MacMillan, pp. 1–22. Logan C (1987) Privatising Prisons: The Moral Case. Adam Smith Institute. Logan C (1990) Private Prisons: Cons and Pros. Oxford University Press. Mair G and Burkel L (2012) Redemption Rehabilitation and Risk Management. Routledge. Martin C (ed) (1989) Contracts to Punish; Private or Public? ISTD, pp. 15–18. Matthews R (1989a) Privatising Criminal Justice. Sage Contemporary Criminology. Matthews R (1989b) Privatization in perspective. In Matthews R (ed) The Demand to Construct More and More Prisons Privatising Criminal Justice. Sage Contemporary Criminology, pp. 1–23. Mehigan J and Rowe A (2007) Problematizing prison privatization: An overview of the debate. In Jewkes Y (ed) Handbook of Prisons. Willan Publishing, pp. 356–376. Morgan R (1994) An awkward anomaly; Remand prisoners. In Player E and Jenkins M (eds) Prisons after Woolf; Reform Through Riot. Routledge, pp. 143–160. National Audit Offce (2013) The Operational Performance of PFI Prisons. (June 18). National Audit Offce (2016a) PFI and PF2 Projects. 2016 Summary Data. National Audit Offce (2016b) Performance and Management of Hospital PFI Contracts. (Sept. 27). National Audit Offce (2018) PFI and PF2. Nellis M and Gelsthorpe L (2003) Human rights and the Probation values debate. In Chui W and Nellis M (eds) Moving Probation Forward. Pearson Longman, pp. 227–231. Pease K (1994) Forget the ideology; What could privatisation contribute to prison reform? In Martin C (ed) Contracts to Punish; Private or Public? ISTD, pp. 15–18. Ryan M and Ward T (1989) Privatisation and the Penal System. The American Experience and the Debate in Britain. Oxford University Press. South N (1989) Criminal justice industries PLC? In Farrell M (ed) Punishment for Proft. ISTD, pp. 53–63. Steer T. The Sunday Times (2018) (16 Sept) p. 6. Taylor M and Pease K (1989) Private prisons and penal purpose. In Matthews R (ed) Privatising Criminal Justice. Sage Contemporary Criminology, pp. 179–194. Teague M (2012) Neoliberalism, prisons and probation in the USA and England and Wales. In Whitehead P and Crawshaw P (eds) Organising Neoliberalism: Markets Privatisation and Justice. Anthem Press, pp. 45–79. Thomas C and Logan C (1993) The development, present status and future potential of correctional privatization in America. In Bowman G, Hakim S and Seidenstat P (eds) Privatizing Correctional Institutions. Transaction Publishers, pp. 213–240. Whitehead P and Crawshaw P (eds) Organising Neoliberalism. Markets, Privatisation and Justice. Anthem Press. Winch G, Onishi M and Schmidt S (2012) Taking Stock of PPI and PFI around the World. Manchester Business School.

2 PROBATION FOR PROFIT Neoliberalism, magical thinking and evidence refusal Peter Raynor

The aim of this chapter is to explore the background and context of probation privatisation and of its major manifestation, the Transforming Rehabilitation project (TR; Ministry of Justice 2013). This is understood here not simply as a bizarre policy aberration (although it clearly was) but as a consequence of three established patterns in the public policy development and politics of England and Wales. (In this context, up to now, this means primarily England; the prospect of a different Welsh approach is discussed later in the chapter.) The three established patterns are frst, the centralisation of control over key policy issues and key services in London, resulting in the marginalisation and displacement of local voices and institutions; second, a continuing ambivalence towards publicly funded welfare services among large parts of Britain’s political elite; and third, an exaggerated faith in free markets and the private sector which has dominated political thinking since the late 1970s, forming part of a neoliberal consensus which has had a dramatic effect on Britain’s economy and public policy. The disaster of TR cannot simply be blamed on the accident-prone Justice Secretary Chris Grayling; the thinking which led to it was well embedded before he arrived in post.

Three risks to probation: central control, anti-welfare ideologies and neoliberal dogma The displacement of local accountability in the governance of probation has been noted by several well-informed commentators (for example, Deering and Feilzer 2019). A particularly damaging aspect of this has been the exclusion of the judiciary (mainly magistrates, but also judges) from the direct role they played in the governance of probation until the creation of the centrally controlled National Probation Service in 2001. Since then, politicians have replaced the judiciary in the control of probation. Partly this represented a victory for the executive in a

Probation for proft

19

long quiet tug-of-war with the judiciary over ownership of aspects of criminal justice: the Ministry of Justice now exercises considerable control over the Courts, including cutting their budgets, closing Court premises, reducing legal aid and imposing technological innovations which are not always welcome, mostly in pursuit of speedy disposal of cases (Donoghue 2014). This has completely changed the role of probation staff in Court (Robinson 2017). The contrast with the system of local Probation Committees, which operated at County level through most of the 20th century and consisted mainly of local magistrates, is very clear, and the consequences can be seen in a reduction in the use of community sentences and a partial loss of confdence by sentencers in, and lack of knowledge about, current probation arrangements. A service which originally belonged to localities and their Courts has been taken over by a London-based Ministry, making it both more visible to politicians and easier to control and change. Whilst it could be argued that a greater degree of central control was inevitable as central government gradually took over responsibility for funding, this drift of funding responsibility to the centre was itself part of the general centralising tendency which has not been confned to criminal justice. Local government in the UK has less fnancial independence and less control over services than is normal in most of Europe. The advantage of central control is that it allows more direct implementation of policies intended to change or improve services, and the centralisation of control over probation in 2001 was partly intended to speed up implementation of the ambitious evidence-based ‘What Works’ initiative (Underdown 1998) and to improve probation outcomes. ‘What Works’ was, in the end, a partial success at best (Raynor 2004) but its price was that probation became a highly visible policy target and something of a political football, to be kicked around at will by ministers seeking to make a name for themselves. A notable feature of central control by the Ministry of Justice is that the responsible ministers are often not in the job for very long. Most recently there have been fve incumbents in four years. Some may not be greatly committed to criminal justice: instead, they look for eye-catching initiatives to improve their chances of political advancement. Many changes in probation and offender management actually take some years to assess, in order to allow time for proper implementation and a reconviction follow-up of the offenders concerned, but few politicians have the patience, or the duration in offce, for such an incremental approach. Recent probation history has been marked by a series of inadequately evaluated changes, from the invention of ‘punishment in the community’ in the 1991 Criminal Justice Act and the abolition of the requirement of consent to probation in 1997 (Raynor 2014) to the abolition of the Probation Order itself in 2000 and the requirement introduced in 2013 to insert a punitive requirement in every community sentence. All of these predated TR but helped to establish a pattern of initiatives which appeared more designed to demonstrate ministerial toughness than to make services more effective. It is instructive to compare this with the situation in Scotland where the equivalent of the Probation Service is called Criminal Justice Social Work, located in local authority social work departments and governed by policies

20 Peter Raynor

worked out between central government (in Edinburgh) and local government. On the whole, Scotland has avoided the kind of get-tough gestures that have featured in probation in England and Wales, and is currently in the process of abolishing short prison sentences in favour of community sentences. In England and Wales the historic alliance of probation and social work was seen by politicians as a disadvantage, and the training of probation offcers was separated from social work training in 1998. In Scotland, Northern Ireland and the Channel Islands this separation did not happen and probation offcers still normally require a social work qualifcation. There is no evidence that this damages the reputation of probation, and it may well increase its effectiveness. The second of the three risks identifed earlier is the long tradition of ambivalence about welfare, mainly in the Conservative Party which in recent years has ruled Britain (alone or in coalition) from 1979 to 1997 and again from 2010 to the time of writing. It is often argued that the Welfare State reforms of the late 1940s in Britain were supported by a broad cross-party consensus regardless of which party was in power, but this bipartisan approach broke down with the emergence of ‘Thatcherism’ in the late 1970s and the election of Margaret Thatcher’s government in 1979. However, the foundations of anti-welfare thinking in the Conservative Party had been laid well before, supported by right-wing think tanks like the Institute for Economic Affairs (IEA). A vivid example was provided by the colourful Member of Parliament, head teacher and IEA supporter Rhodes Boyson in his book Down with the Poor, published in 1971, which compared the Welfare State to the production of broiler chickens:‘A State which does for its citizens what they can do for themselves is an evil State; and a State which removes all choice and responsibility from its people and makes them like broiler hens will create the irresponsible society. In such an irresponsible society no one cares, no one saves, no one bothers – why should they when the State spends all its energies taking money from the energetic, successful and thrifty to give to the idle, the failures and the feckless?’ (Boyson 1971: 5). A slightly later generation of welfare-sceptical Conservative ideologues would fnd similar comfort in the work of the American Charles Murray, who developed a theory that welfare support was creating a self-perpetuating dependent ‘underclass’. This was supposedly characterised by a lifestyle of drug abuse, crime, worklessness, school truancy, casual violence and ‘illegitimate’ childbearing. On a visit to Britain Murray claimed to have identifed the same problems he had seen in America, and an article he published in the Sunday Times in 1989 was re-issued in expanded form by the IEA under the title ‘The Emerging British Underclass’ (Murray 1990). This popularised the idea that at least some sections of the poor were creating their own poverty through their lifestyle choices, and that State handouts simply encouraged them to go on doing so – an argument familiar to the architects of the Victorian Poor Law (The Poor Law Commissioners 1834). The implication was that a reduction in handouts would help to restore the moral fbre and self-discipline of the underclass. More recently again, the Conservative Eurosceptic and ambitious plotter Michael Gove, when he was Secretary of State for Education, delivered a widely

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reported speech in which he criticised social workers for regarding their clients as disempowered victims of social injustice, thereby robbing them of ‘the power of agency’ and explaining away their ‘personal irresponsibility’ and ‘wrong choices’ (Gove 2013). Whilst this was no doubt an accurate comment on some cases, it comes close to Murray’s argument that subsidising the underclass lifestyle simply prevents people from lifting themselves out of it. This ingrained scepticism about the scale, value and effects of State welfare applies even more strongly to groups seen as less deserving, such as offenders. Helping offenders can be misunderstood as a particularly perverse example of rewarding misbehaviour, and this is a major reason why some politicians fnd it diffcult to understand probation. Mention of the 1834 Poor Law Report brings us to the third of the identifed risks or threats to welfare-oriented State services, namely the dominance of neoliberal economic policies in the UK and much of the industrialised world since the 1970s. Called neoliberals because they revive the ideas of their 19th-century predecessors, including the designers of the Victorian Poor Law, neoliberals believe in the primacy of free markets, which they maintain will optimise outcomes for everyone if allowed to operate free from unhelpful State interference such as regulation, taxation and redistributive social policies. Rejected by most economists and politicians from the 1940s onwards but revived by admirers of Friedrich Hayek (see, for example, his book The Road to Serfdom published in 1944) and by his followers (including Rhodes Boyson and the founders of the IEA), market fundamentalism was embraced by Margaret Thatcher and her colleagues (particularly Keith Joseph) in Britain and by Ronald Reagan in America. Freeing the markets and allowing corporations to pursue profts for their shareholders became a key political goal, mainly but not exclusively of Conservative governments, and has led to two important policy strands: frst, attempting to shrink the State by reducing taxation and public spending, and second, introducing market mechanisms into what were previously non-market services such as health, universities and criminal justice. Market fundamentalists continue to believe in these doctrines, and this is refected in their preference for austerity-based public policies rather than social investment. Their preferred option for the public services that remain is typically some form of private sector involvement, or the creation of quasi-market competition through the management of incentives in the public sector. The resulting increases in poverty and inequality are seen as a price worth paying: market dogma successfully inoculates its adherents against the effects of evidence. Michael Gove famously announced, while campaigning for Brexit, that ‘The British people have had enough of experts’ (Gove 2016). Maintaining belief in the effcacy and virtue of markets is easier if the resulting inequalities can be ignored or rationalised: rich people can feel more comfortable about their wealth if they believe it is the consequence of personal merit rather than good fortune or inherited advantage. It is easier for them to believe that they deserve to be rich if they also believe that the poor deserve to be poor and cannot be effectively helped by redistributive policies. This is another source of prejudice against redistributive welfare and leads to particular scepticism about services designed to help offenders.

22 Peter Raynor

The ‘New Labour’ governments of 1997–2010 also embraced many elements of neoliberalism. Although more generous with public spending than their Conservative opponents, they believed in markets and in private sector solutions to many public sector problems. Individual New Labour politicians were much more comfortable with the idea of private wealth than traditional Labour politicians had been, and sometimes New Labour seemed to show excessive deference and admiration when dealing with rich people. Tony Blair set the tone: as the former Labour leadership contender Bryan Gould said about Blair in a recent interview, ‘I always thought his real ambition was to be a pop star – he admired the rich and famous and aspired to join them’ (Engel 2019: 35). Senior Labour politicians often shared with Conservatives a failure to engage with probation services through a joint understanding of problems and solutions; instead they seemed to be trying to turn probation into something else. The language of ‘punishment in the community’, introduced under a Conservative government and initially presented to practitioners simply as a change of language, increasingly looked like a change of heart (Rumgay 1989), refected for example in the abolition of probation orders in 2000. When Jack Straw was Home Secretary he introduced the term ‘resettlement’ to replace ‘after-care’ and ‘throughcare’ because he did not want to give the impression of a caring service:‘Some of the terms have been criticised, for example because . . . they are associated with tolerance of crime . . . (e.g. “throughcare” which sounds more associated with the “caring” services)’ (Home Offce 1998: 8). Some of Straw’s successors were not immune to the temptation to make tough gestures at the expense of probation’s reputation and standing: John Reid announced that he was ‘the Enforcer’ and made a speech in a prison, with senior probation staff in attendance, in which he told the prisoners that the Probation Service that would be supervising many of them on release was ‘not working as well as it should’ and in need of ‘fundamental reform’ (Reid 2006). In another comment which revealed technical ignorance as well as negative attitudes, Jack Straw (serving by this time as Justice Secretary) told an audience at the Royal Society of Arts that he was ‘driven nuts’ when people mentioned ‘criminogenic needs’ because this was giving offenders’ needs the same status as other people’s needs (Straw 2008). There are several lessons to be learned from the New Labour episode. One is that checks and balances are needed at a local level to ensure that decisions about probation services do not depend solely on politicians in London. They are often too close to the media, too focused on impressing their colleagues and building a political career, and too impatient with details to take well-informed evidencebased decisions, in spite of New Labour’s advertised commitment to evidence-based policy. In addition, too many of them like to display toughness or are worried about appearing ‘soft on crime’. Attacking probation offcers and social workers has become almost a traditional way to display tough-mindedness. The perception that probation could improve, and needed to improve, was not inaccurate but the kind of improvement imagined by politicians was often the wrong kind. Ministers and civil servants were frustrated by the fact that their ambitious ‘Crime Reduction Programme’, which ran from 1999–2003, was not more successful, though evaluation

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suggested that at least as far as probation was concerned, the programme was too short to allow proper implementation and evaluation of new ways of working (Maguire 2004; Raynor 2004). A report on offender management commissioned from Patrick Carter, a businessman with extensive interests in private health care, sensibly advocated a more joined-up approach between prisons and probation in managing the supervision of offenders who were involved with both (Carter 2003) but also introduced the idea of ‘contestability’ to engage the private and voluntary sectors in delivering ‘interventions’ for offenders. The division he introduced between ‘offender management’ and ‘interventions’, based on the assumption that only ‘interventions’ produce change, tended to fragment the supervision process and also ignored evidence that individual supervision, as part of ‘offender management’, could be a change-promoting intervention in its own right (Raynor et al. 2014). Carter’s interest in contestability was consistent with a number of New Labour attitudes and policies. Partial privatisation of the prison estate allowed a small proportion of prisons to be run by private companies and was widely seen as a helpful approach to stimulate improvement in regimes and to overcome perceived resistance to change by some staff. Some private prisons have recently had to return to public sector management, but overall there is little evidence that private prisons have, as a whole, performed signifcantly better or worse than public ones. The existence of competing systems is believed to have encouraged some positive developments. It was inevitable that some would seek to apply the same logic to probation services, and an Offender Management Act was passed in 2007 to pave the way for ‘contestability’ in probation. In fairness it should be remembered that New Labour’s interest in ‘what works’ led to a focus on outcomes, with no presumption that the process of producing outcomes should belong to the public sector simply on historical grounds. In addition there was (and had been for some years) a persistent campaign of lobbying by private sector companies interested in breaking in to the criminal justice system, where they could see large sums of public money being spent without, as yet, yielding proft for their own shareholders. Consistently with neoliberalism, market approaches were assumed to be the norm. The author was present at a meeting organised by the Institute for Public Policy Research (a centre-left think tank) at which private sector representatives and people from Tony Blair’s ‘Delivery Unit’ were clearly in agreement that a greater private sector involvement in criminal justice would rapidly produce signifcant improvements. When I asked whether there was any evidence for this, people literally hissed that my question was based on ‘pure ideology’: markets were the norm, the natural way to go, and any opposition must be ideological. Professional advice was dismissed as ‘producer interest’. Sustained private sector lobbying was clearly bearing fruit by normalising market approaches (which were not perceived as ‘ideological’). This context and these attitudes were inherited by the Conservative-led coalition government which took power in 2010; they added their own neoliberal commitment to austerity, reducing public expenditure and shrinking the role of the State. This was the background to the ‘Transforming Rehabilitation’ project, originally set out in a White Paper (Ministry of Justice 2013), and this was the

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political culture which made Chris Grayling’s version of TR thinkable. The second part of this chapter considers the theory, implementation and performance of the TR ‘reforms’.

Magical thinking and evidence refusal in the invention of TR The neoliberal political culture from which TR emerged is characterised both by blind faith in markets and by an exaggerated respect for wealth and wealthy people. The public sector is seen as overstaffed, uncreative, stifed by tradition and slow to change. Arguments in principle against criminal justice privatisation (for example, that the State’s monopoly of legitimate coercion cannot be outsourced, or that it is wrong to proft from the administration of punishment, or that a fnancial stake in particular outcomes could threaten the principle of impartiality in the administration of justice) are simply dismissed. The extent of some Conservative politicians’ misunderstanding of, and contempt for the public sector is evident in the key assumptions behind the business case for privatisation. Grayling and his advisers believed that the private sector would certainly deliver new ways of working and new effcient management: companies with sometimes very little criminal justice experience were believed able to out-perform a century-old specialist service to such an extent that they would do more work more effectively, at lower cost to the public purse, while at the same time taking money out of the business to deliver proft for shareholders. The level of delusion and magical thinking was such that 40,000 released short-sentence prisoners would be added to the caseload with no signifcant extra resource to support them – an attempt to fll a genuine gap in services with something not far short of a conjuring trick. The argument that nobody should make money out of criminal justice is clearly weak, since many thousands of people make their living in occupations which depend on the existence of crime and of attempts to control it. A more persuasive argument is that private companies exist primarily to deliver shareholder value, and commitment to the public interest is a secondary goal which can coexist or confict with this primary goal. In any confict, shareholder value must ultimately win. In the case of limited private sector involvement, where specialist services are purchased from private sector suppliers by much larger public organisations, it is possible for the purchaser to represent the public interest strongly and prevent most conficts (for example, the purchase of developed and accredited rehabilitative programmes from private sector experts by the Ministry of Justice has not usually resulted in major distortions of the product or the public interest). However, the privatisation of whole services, or majority slices of services as in TR, hands over the public interest to those who have a primary obligation to deliver proft to shareholders. This is the stronger argument in principle against private sector involvement: too much involvement brings too much shareholder interest and proft motive into services that should be guided by the public interest. Similar arguments have been advanced against health service privatisation (for example by Pollock 2004) and by

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Michael Sandel in his exploration of the ‘moral limits of markets’ (Sandel 2013). The commodifcation of public goods runs the risk that they will be pursued simply for money rather than for their own sake, or for higher-order moral purposes such as justice or human rights. Market fundamentalists assume that consumers, by choosing what to buy, can optimise their own outcomes, and that this will shape the behaviour of suppliers to refect consumer needs. In theory this satisfes both the consumer, whose preferred commodity is supplied, and the supplier who profts from the transaction. This is supposed to be the mechanism which keeps the private sector effcient, economical and innovative as companies compete to meet consumer demand. This is an imaginary ideal: real world markets are usually quite different as large corporations try to limit competition and establish monopolies or at least oligopolies. Distortions of markets have often been based on the search for guaranteed profts through monopoly rather than competition: from the practice of mediaeval monarchs granting monopolies on essential goods to favoured supporters, to the later expectation that countries in the British Empire should buy British cars and motorcycles regardless of quality, the attempt to manipulate or evade the risks of market competition is as old as the search for market advantage. As the market for public services has developed in response to lobbying by corporations for a share of the public funds which used to be beyond their reach, other distortions appear: for example, who is the consumer? Civil servants tasked with the procurement of services from the private sector may not fully represent the interests of service users. In the case of TR there seems to have been little input from the Courts in the procurement process. In addition, the process of seeking business from the privatisation of public services has a political context which negates many of the supposed advantages of a market approach. Service providing companies are pushing at an open door when politicians hold strong beliefs in favour of (idealised) markets and against State provision. This tends to distort the procurement process in favour of the private sector. In the case of TR, civil servants came under strong pressure to agree contracts in accordance with a political timescale set by a minister who believed totally in the superior effciency and innovative capacity of the private sector. In addition, they had a limited rage of possible suppliers to choose from, with two of the major companies excluded from tendering because they were under investigation for defrauding the Ministry. TR had originally been promoted on the basis that it would involve the voluntary sector, but in reality it was mostly large private sector companies that had the bidwriting skills to produce a convincing prospectus – particularly as there was, to begin with, no appetite to control their operations closely, which would have been necessary if they were to be held to what they promised in their bids. Instead they were ‘set free’ from the controls and restrictions which were believed to handicap the public sector. One consequence was that in practice the role of the voluntary sector was reduced rather than increased, as revealed in a report by Her Majesty’s Inspectorate of Probation (HMIP): companies which set out ambitious visions of voluntary sector collaboration mostly did not do it, and were not required to do it

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(HMIP 2018). Another consequence was that claims of criminal justice expertise made by companies with little actual criminal justice involvement were not suffciently challenged: it was simply assumed that because they were in the private sector they would easily out-perform an experienced public body. In addition, the break-up and sell-off of the Probation Service was conducted to an impossibly tight timetable in order to get it done before an expected general election, in the same way that privatisation of the railways was rushed through in the dying months of John Major’s government in 1996–7. What could possibly go wrong? The fnal evidence of blind faith in privatisation was that the Probation Service itself was excluded from bidding for the Community Rehabilitation Company contracts. The only really experienced provider of probation services was ruled out of the competition from the start: contestability without a contest.

Evidence refusal When TR was frst proposed, it was intended that there would be a comprehensive programme of piloting and evaluation to inform implementation and manage risks. Instead, Chris Grayling opted to cancel pilots and proceed with an evidence-free high-risk privatisation programme, on the grounds that ‘I don’t believe you need to pilot professional and operational freedom’ (Grayling 2014). Two pilot studies of voluntary after-care schemes for short-sentence prisoners (Disley et al. 2015; Pearce et al. 2015) were claimed as evidence in favour of payment by results (which was a key element of the TR plans), but in fact they were simply evidence of the benefts of providing a service where none had existed before. The deliberate decision to proceed without evidence, when evidence could have been gathered, amounts to a reckless refusal to develop policy in an evidence-based way. Since implementation, however, there has been no shortage of evidence: this includes reviews by Parliamentary Committees on Justice (House of Commons Justice Committee 2018) and Public Accounts (Public Accounts Committee 2019), the National Audit Offce twice (2016 and 2019) and, most importantly, a series of reports from Her Majesty’s Inspectorate of Probation (see particularly HM Inspectorate of Probation 2016, 2018 and 2019). All these have condemned TR as a mistake which clearly fails to deliver what was intended. The Public Accounts Committee (2019), for example, concludes that the TR reforms have failed to deliver improvements in probation in spite of extra expenditure of £467 million to prop up the failing system, and the Chief Probation Inspector describes the TR system as ‘irredeemably fawed’ (HM Inspectorate of Probation 2019: 3). The problems identifed by these authoritative sources are numerous, including poor supervision, infrequent contact (often meaning six-weekly telephone calls), reductions in professionally qualifed staff leading to higher caseloads and lower quality of supervision, failure to maintain promised partnerships with voluntary organisations, and provision of the much-vaunted resettlement service for shortsentence prisoners which is so poor as to offer them little beyond an increased chance of being recalled to prison. In the words of the Chief Inspector,‘probation

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leaders were required to deliver change they did not believe in, against the very ethos of the profession. On inspection, we now fnd probation supervision provided under contract to be substandard, and much of it demonstrably poor. . . . Probation is a complex social service, with professional judgement at its heart, but probation contracts treat it largely as a transactional business . . . there has been . . . a widespread move away from good probation practice. This is chiefy due to the impact of commerce. . . . Professional probation work is so much more than simply a series of transactions, and when treated in that way it is distorted and diminished’ (HM Inspectorate of Probation 2019: 3). In the equally damning words of the Public Accounts Committee, ‘Inexcusably, probation services have been left in a worse position than they were in before the Ministry embarked on its reforms’ (Public Accounts Committee 2019 summary: 1). In other words, the private companies have damaged the service they claimed to be able to improve. Finally, it should be noted that the Courts, which are the nearest thing to a customer in this pretended market, have lost confdence in the service and are reducing their use of community sentences. Meanwhile the CRCs have asked the government for more money and complained that they have insuffcient business, while at the same time inspections have shown them to be reducing their staff, making typically around a third of them redundant. This tends to involve a disproportionate loss of the more qualifed and experienced staff, and has resulted in unreasonably high caseloads, with some staff carrying more than 200 cases. In short,the results of TR are so bad that the current minister has had to announce early termination of CRC contracts, and it is increasingly clear that any future system will need to rethink the degree of privatisation be retained, if any. Privatisation carries a continuing risk of the perverse incentives which have helped to distort TR, namely the pressure on procurement offcials subject to tight deadlines to accept what they can get rather that what they need, and the clear incentive for providers to over-promise and under-deliver. Continuing the failed privatisation experiment in a new form would arguably be another case of evidence refusal. In the meantime Chris Grayling, in his new job as Transport Secretary, has continued to demonstrate an aptitude for magical thinking, issuing an expensive contract for the provision of ferry services to a company which had no boats (as reported in The Guardian of 11 February 2019). The restoration of probation services to the public sector, as consistently advocated by the probation offcers’ union NAPO, appears quite feasible, and is about to happen in Wales at the time of writing. The Labour Party favours this approach and has invited Lord Ramsbotham, the former Chief Inspector of Prisons, to provide them with a report on how it might be done. The model of central top-down control from London is probably not the best: research has shown that some staff at frst actually welcomed the opportunity to break away from Civil Service control into the private companies (Robinson et al. 2016) and the National Probation Service (the centrally run remainder of the Probation Service, charged with the supervision of high-risk offenders) has been criticised over managerialism and the stress caused to staff by uniformly high-risk caseloads (Phillips et al. 2016).

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However, past models from the days when probation was more highly regarded and more successful may offer some guidance. A reformed public sector probation service could usefully include the following features (as argued in Raynor 2019, and by many others): •

•

• •

•

•

• •

Restoring greater localism. The reinstatement of some local decision-making and influence would allow services to reflect local priorities and opportunities, and local commissioning from the voluntary and even private sectors could make better and more informed use of these resources than was achieved under TR. Restoring judicial involvement in the governance of probation services, giving sentencers an opportunity to say what services they want and need: for example, fuller pre-sentence reports which do not sacrifice detail to speed (Robinson 2017). There is evidence that sentencers are concerned that justice is threatened by centrally imposed targets which prioritise speed (Donoghue 2014). Some pre-sentence reports could focus on developing rehabilitative proposals in agreement with defendants, if allowed time to do this. Developing a clear policy framework repositioning community sentences at the centre of a strategy to reduce or replace short prison sentences. Introducing more voluntarism and less coercion to the management of resettlement for short-sentence prisoners, encouraging them to opt in to services by personal contact before release rather than punishing them for failure to engage. Recognising that the most important resource for making probation effective is the skilled and effective practitioner. Recent research shows how skilled staff can achieve significantly better results that less skilled staff (Chadwick et al. 2015; Raynor et al. 2014; Ugwudike et al. 2017). Ensuring regular supervision by experienced practitioners who understand practice skills (see, for example, Bourgon et al. 2010 for evidence that this improves effectiveness). Ending ill-informed managerialism by ensuring that teams and services are led by people who understand and value probation services. Ensuring that evidence is gathered and used, and that new initiatives are designed and implemented in such a way that they are capable of being evaluated and producing evidence (Raynor 2004).

In conclusion, one might argue that there is little need to debate the rights and wrongs of criminal justice privatisation in principle since, judged simply on outcomes, there is ample evidence of TR’s failure to be found in practicalities alone. However, the argument that privatisation is never likely to bring about a step-change in probation’s effectiveness remains important because the government and in particular the Justice Secretary need to decide how to replace TR. Adherents of failed market dogma will look for solutions in adjustments to the bidding process or more sophisticated procurement processes. These can probably be accommodated fairly

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easily by clever bid-writing specialists within the private sector companies, particularly when, as we have seen, they are not unduly burdened by any particularly strong requirement that the innovations they promise should actually be delivered. However, there is not a shred of evidence left to support this kind of approach to the delivery of probation services, and there never was much. The conclusion is simple: the TR approach should never be tried again. Incremental evidence-based improvement is the preferred way forward and can deliver improvements where privatisation failed. The alternative proposal, to bring probation back under public sector control and run it as a public service, is gaining ground at the time of writing, particularly in Wales where the decision to re-unify probation under public control has already been made (Ministry of Justice 2018). However, in the current state of British politics the future is hard to predict. In addition, we need to recognise that reversing TR is only part of the solution. The wider issues of how to improve effectiveness in ways that probation can own and welcome, and in particular how to offer something to released short-sentence prisoners which is actually helpful and promotes desistance from offending will remain to be addressed. In this feld patient improvement, respecting evidence and experience, offers more than grand political gestures.

Epilogue As the fnal sentences of this chapter were being written, Justice Secretary David Gauke released his long-awaited response to consultation on the way forward for TR. Having inherited the poisoned chalice from Chris Grayling via three other notably short-term Justice Secretaries (Michael Gove, Liz Truss and David Lidington), he was exposed to the negative verdict of numerous reports and had already announced that the CRC contracts would be terminated early (Ministry of Justice 2018). However, his alternative proposal was initially to set up fewer and larger private sector contracts, with improved procurement. The consultation (Ministry of Justice 2019) persuaded him otherwise, and all offender management is to be returned to the public sector in a less centralised Probation Service of 11 regions, each with its own director. Wales will change frst, and the rest will follow. There are still plans to retain a signifcant role for the private and voluntary sectors as providers of community punishment (unpaid work) and other ‘interventions’. It remains to be seen exactly how far the regions will be involved in new arrangements for governance and commissioning, but clearly the worst excesses of the TR programme are to be abolished. How much trouble and damage could have been avoided if evidence had been gathered before implementation instead of after? There is still scope for mistakes in the new arrangements for involving the private sector, but many organisations and individuals will be watching these events closely. The danger of magical thinking and evidence refusal persists as long as infuential politicians remain under the spell of market fundamentalism.

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The Poor Law Commissioners (1834) Report of the Royal Commission on the Poor Laws. London: The Commissioners. Public Accounts Committee (2019) Transforming rehabilitation: Progress Review. Online publication, www.parliament.uk, accessed May 2019. Raynor P (2004) The probation service ‘pathfnders’: fnding the path and losing the way? Criminal Justice 4(3): 309–325. Raynor P (2014) Consent to probation in England and Wales: how it was abolished, and why it matters. European Journal of Probation 6(3): 296–307. Raynor P (2019) Back to the future? The long view of probation and sentencing. Probation Journal 65(3): 335–347. Raynor P, Ugwudike P and Vanstone M (2014) The impact of skills in probation work: a reconviction study. Criminology and Criminal Justice 14(2): 235–249. Reid J (2006) Speech to Wormwood Scrubs Prison. 7 November. Robinson G (2017) Stand-down and deliver: pre-sentence reports, quality and the new culture of speed. Probation Journal 64(4): 337–353. Robinson G, Burke L and Millings M (2016) Criminal justice identities in transition: the case of devolved probation services in England and Wales. British Journal of Criminology 56(1): 161–178. Rumgay J (1989) Talking tough: empty threats in probation practice. Howard Journal 28(3): 177–186. Sandel M (2013) What Money Can’t Buy: The Moral Limits of Markets. London: Penguin. Straw J (2008) Speech to the Royal Society of Arts. 27 October. Ugwudike P, Raynor P and Annison J eds. (2017) Evidence-based Skills in Criminal Justice. Bristol: Policy Press. Underdown A (1998) Strategies for Effective Offender Supervision: Report of the HMIP What Works Project. London: HM Inspectorate of Probation.

3 ELECTRONIC MONITORING, NEOLIBERALISM AND THE SHAPING OF COMMUNITY SANCTIONS Mike Nellis

Introduction The character – even the name – of what are nowadays designated “community sanctions” has never been fxed or constant, although all initial iterations of them were notionally understood as alternatives to imprisonment, either as a sentencing option in a tariff that retains imprisonment, or, more rarely, as a replacement for imprisonment. Promoting the increased use of rehabilitative community sanctions in order to reduce the use of imprisonment to a minimum, on the humanitarian assumption that government and sentencers could be persuaded to adopt the most cost-effective, least harmful approach to offenders, was the mainstay of the liberal penal reform movement throughout the twentieth century. Exposing the empirical and logical faws in this approach – sanctions introduced as alternatives to imprisonment get used alongside imprisonment rather than instead of it, often with less serious offenders (netwidening), with the result that prison and community sanction use expand in tandem (Cohen 1985) – did not mean that the principle of keeping offenders out of prison in the community wherever possible was invalidated, only that its pursuit was rendered more complicated. What made the principle itself more problematic was the reconfguring of existing community sanctions as more punitive than rehabilitative, blurring the distinction between these approaches, combining custody and post-release supervision into a single penalty, and introducing new sanctions which punished (or controlled) in different ways, including spatial restrictions – of which restraining orders and, later, ASBOs – were the archetypes – without any aspiration to rehabilitate in the traditional sense. Chief among the latter, from the 1980s on, was “electronic monitoring” (EM), a way of remotely regulating and enforcing spatial and temporal schedules, enshrined in law and imposed by courts and prison governors. Its political and commercial champions pitched it as a cheap and effective

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punishment, creating “jailspace” within the home whilst also retaining vital ties to families and employers, as well as protecting victims. EM was even dubbed, misleadingly, “virtual imprisonment” by its more technophiliac supporters, despite the US psychologists who had devised its prototypes in the 1960s and 1970s envisaging it as supporting rehabilitation. Furthermore, as noted, EM was a commercial product, sometimes – as in England and Wales – delivered by a commercial enterprise contracted to government. Notwithstanding the inevitability of commercial exposure to tech manufacturers, there is no necessity for states to deliver EM via a private sector organisation. Worldwide the standard model has been state agencies buying (or renting) hardware, software and location data analysis from manufacturers, although it is recognised that “business interests” invariably have a multiplicity of indirect ways of infuencing public discourse and state choices, outside specifc contracts and transactions. Once probation and penal reformers in England and Wales understood that EM had commercial drivers and corporate allies that other community sanctions had repudiated by design, that too became a reason for opposing it. Stridently opposing EM, as unacceptable state-commercial surveillance, at odds with the relational heart of probation supervision, is precisely what the National Association of Probation Offcers (NAPO) did, despite being part of a wider trade union movement that acknowledged both benefts and peril in emergent forms of automation. In his article Technology and the Future of Community Penalties, and recognising this complexity, George Mair (1998) urged probation to take a cautious, critically engaged position on emerging technologies – CCTV, EM and data-based case management – rather than reject them outright, fearing that the Probation Service risked marginalising itself from already hostile policymakers and alienating itself from a more querulous public if it opposed technology in a doctrinaire way (and disregarded any evidence of EMs utility). Mair considered that EM might be rendered less threatening if it was actually embedded in probation culture and subordinated to its professional values, as was occurring in other European countries, but this was something on which NAPO was as intransigent as government itself. Time has proved Mair’s anxieties right, as this chapter will show.

Neoliberalism and technology The displacement of social democratic ideals in criminal justice by an ascendant neoliberalism, beginning in the last quarter of the twentieth century, has been told many times, in several theoretical registers, usefully summarised by Nicola Lacey (2013). Neoliberalism denotes a commitment to infusing market-derived ideals of technocratic effciency into state agencies (managerialism and actuarialism), outsouring once public services in various ways to the private sector; opposing taxfunded welfare states, favouring penal exclusion of the marginalised and disaffected and valorising entrepreneurialism and (certain sorts of) innovation. Its discursive and practical expression, including its own internal disagreements on how markets

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best work, are shaped by the milieu in which it operates and the guile of its champions. Its infuence plays out differently in different countries, over variable timescales, depending on the degree of institutional and ideological opposition it faces, and the contending parties’ appetite for compromise. Since it frst gained a foothold in governance structures in the 1970s, William Davies (2016) suggests that neoliberalism in England and Wales has developed in three (schematic) phases, adjusting its political strategies and mode of self-representation in each in order to extend or entrench its power. Combative neoliberalism (1979–1989) sought to discredit, undermine and dismantle the institutional and cultural legacy of post-war social democracy and public service (the perceived enemies of prosperity and freedom), and “to demolish non-capitalist avenues of political hope” (Davies 2016: 126). Normative neoliberalism (1989–2008), ascendant after the collapse of communism, achieved its apotheosis in Third Way/New Labour claims about the virtues of markets and the idea of “contestability”, in which public sector agencies were constantly pressed to prove themselves against the notionally higher standards of effectiveness and cost-effciency in the private sector. Punitive neoliberalism (2008 to the present) emerged in the aftermath of the global fnancial crisis, to shore up and consolidate an ideologically weakened neoliberalism. Banking debts were ruthlessly transmuted by a Conservative-led Coalition government into austerity policies, enabling the long dreamed-of destruction of the public sector, while an intensifed vindictiveness was directed towards the poor and the liberal/social democrat critics who continued to champion ideals of inclusion, equality, social justice and the common good – and criminal justice practices most commensurate with them. The entwined fates of probation and electronic monitoring can broadly be understood within this timeline and this framework, not only in terms of the accumulating animus towards the public sector, but also because “invasive technifcation” (Bohme 2012) – the relentless infusion of digital technology into business, governance and everyday life – has been fundamentally constitutive of contemporary neoliberalism and its projected futures. While tracking offender’s movements was the imagined ideal of EM’s early pioneers in the US, the frst technically feasible applications of it in the 1980s used short-range radio frequency (RF) ankle bracelets (tags), landline telephony and quite basic computing to monitor an offender’s court-mandated presence at home. Occurring as it did in the cusp of the digital age, this stimulated the emergence of a global “EM industry”, aptly dubbed “a corrections commercial complex” by Bob Lilly (akin to, and sometimes overlapping with, “the military industrial complex”) because there were invariably degrees of symbiosis between state and commercial interests in the fostering of this new “technocorrection” (Lilly 1992; Lilly and Defem 1996). Initially, the industry comprised companies with interests in private prisons (Wackenhut), security (Chubb, Reliance, Securicor), communications (Marconi), outsourcing state functions (Serco) and purposed-designed EM businesses (BI Incorporated in the US, ElmoTech in Israel), all of whom believed that growing international concern about the costs (and, sometimes, inhumanity) of “prison overcrowding” would fuel a lucrative new market in offender monitoring (Paterson 2007, 2009, 2013).

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The advent and expansion of the Internet and the Web, the opening up in the late 1990s of the American military’s satellite navigation system (the Global Positioning System – GPS) to commercial exploitation, and the transmuting of data generated by peoples’ routine use of new information and communication technologies into a vital resource for business, government and security services wrought transformational change in society, from which penal practices could not be immune. The ideal of mobile, networked, real-time connectivity (vital to the globalisation of commerce, but rendered ubiquitous in everyday life by the availability of personal smartphones) normalised the idea that a person’s location must be known and could be tracked. In such a milieu, customising a form of “coercive connectivity” from readily available digital technologies – the time-limited monitoring of “presence” or “mobility” as ordered by judicial or penal authorities – was neither an imaginative stretch nor a technical challenge. The more general allure of automated solutions (a self-evident source of cost-effciency and proftability to neoliberals [Ford 2015]) incentivised both commerce and government to reimagine the organisational forms required for offender management, and brought new, specialised tracking companies into being, e.g. Supercom, Buddi, Omnilink, Geosatis, some with simultaneous interests in emerging telecare and telehealth markets, forcing older established companies to diversify and upgrade their technologies in order to remain competitive, or leave the feld (Nellis 2018a).

EM: the evolving commercial landscape in England and Wales Of all the political changes with which the Probation Service had to contend in the 1980s and 1990s – as part of the Conservative government’s “punishment in the community” initiative – none was more emblematic or controversial than the advent of electronically monitored curfews as a sentence, and as new forms of bail and early release from prison. It was contentious frstly because the Home Offce framed its purpose in deliberate opposition to the ethos of probation, as a punitive and controlling technology embedded in a stand-alone sentence of up to 12 months (with the option of using it as a condition of a probation order). Establishing it as institutionally separate from probation, delivered by private sector organisations under renewable, fve yearly contracts with the Home Offce, was no less antagonistic. Consistent with combative neoliberalism, government used EM to undermine the humanistic traditions of the post-war Probation Service, projecting surveillance rather than social work as the better future of community supervision (Nellis 1991). The frst fve yearly EM contract split England and Wales into three regions, each managed by a different company: Securicor, a British security company; RelianceGSSC, a partnership between British and US security companies and Premier (a partnership between British outsourcing company Serco and the American private prison company Wackenhut, which had bought up Geografx, a vehicle and boat tracking company, after its role in the pilots). The second, streamlined, contract, from 2005, split the country between north and south and chose G4S (Securicor

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having merged with Danish security company Group 4) and Serco (now split from Wackenhut) as suppliers. The Home Offce permitted these companies to educate sentencers about EM and encourage their use of it. Integration with probation was not encouraged, and even when EM was used as a condition in probation order joint working could be negligible. When the Probation Inspectorate belatedly identifed lack of integration as a lost opportunity, the Ministry of Justice – split off from the Home Offce in 2007 – showed only limited concern (Nellis 2011). While G4S and Serco manifestly wanted their EM business to expand, they did not actively lobby government to adopt innovative new technologies like GPS, but anticipated adding it to their repertoire once the MoJ showed interest in including it within the third contract, as they began to do in 2009. A more urgent and challenging voice came initially from small, tech companies specialising in GPS tracking who, with no commercial investment in RF, were ready to be much more critical of RF’s limitations than incumbent supplier companies could sensibly be. In England and Wales, Buddi, founded in 2005 to sell GPS tracking in the emerging childcare and healthcare markets, was annoyed by the service delivery duopoly fostered by the MoJ, claiming that it not only stifed essential innovation but made it impossible for small companies like themselves to enter the market. Buddi favoured the principle of contracting with local state agencies, and indeed began developing its own contracts with an NHS medium secure psychiatric hospital, and local police Integrated Offender Management projects in 2010. Buddi’s viewpoint was substantially amplifed in a “future of corrections” report on EM by the right-wing think tank Policy Exchange, at the time the most comprehensive analysis and critique of EM policy in England and Wales yet offered, although its aspirations were alarming (Geohegan 2012). Policy Exchange, founded in 2002, was one of several think tanks, Reform and the Centre for Social Justice being the other two, created in and around the Conservative Party to devise compelling neoliberal solutions to public services. It is these bodies which relentlessly mediate a commercial perspective into policy debate, and set policy agendas, rather than companies and corporations themselves, which may nonetheless fund such think tanks, along with more opaque and possibly international donors. Policy Exchange embraced a standard neoliberal trope, namely that once useful but now obsolete technologies like RF EM must necessarily give way to newer, more effcient and effective upgrades like GPS. On the basis of an unduly optimistic reading of US evaluative research on GPS, they concluded that it was the “silver bullet” necessary to effect substantial reductions in re-offending, and should be widely applied alongside other supportive, rehabilitative services. To that end, like Buddi, they wanted contracting with local agencies, including probation (whose privatisation they were not anticipating) but favouring Police and Crime Commissioners, a post that Policy Exchange had invented, and which remained central to their vision of devolved marketised public services rather than the central contracting favoured by the MoJ, (Chambers, Davies and Mcleod 2013). Geohegan mapped out three scenarios for the expansion of GPS tracking leading, respectively, over fve years to 35,000, 76,000 or 140,000 people per day being monitored, depending on which

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operational model was chosen. It was an audacious bid to normalise GPS tracking within the feld of community sanctions, a frst step towards making it indispensable to all supervision (see Nellis 2014). In this ambition, Policy Exchange had a powerful underwriter in Deloitte (2012), one of the world’s four largest multinational accounting frms, and a pacesetter in global economic debate. In a brazenly entitled report, Public Sector, Disrupted it singled out EM, particularly GPS tracking, as one of fve major ways in which governments could achieve “more for less”, and actually improve penal outcomes, in an era of austerity. Its arguments were naïve, and its indifference to existing community sanctions contemptible, but it bestowed immense prestige on the strategy of “disruptive innovation” – hitherto beloved of Silicon Valley, but something Deloitte believed governments could do too – in ways that attracted attention among neoliberals everywhere.

Disruptive innovation and the (non-)creation of “New World” “Transforming Rehabilitation”, the name given by the Conservative-led Coalition to its austerity-driven overhaul of the criminal justice system licenced dramatic structural approaches to change rather than incremental, evidence-based ones. Justice Secretary (and neoliberal ideologue) Chris Grayling’s part-privatisation of the Probation Service (in essence, a means to weaken and destabilise it) and his plan to dispense with RF EM and place 75,000 people on GPS tracking by 2020 (adapted from Policy Exchange) were vivid expressions of this. Taken in tandem, as they must be, they constituted a disruptive innovation aimed at downgrading probation and upgrading EM, a localised variant of Deloitte’s uber-strategy for making EM centre stage in criminal justice, and entirely consistent with Davies’s “punitive neoliberalism”. The probation programme was public, and subject to much opposition. The scale of the EM programme – hubristically dubbed “New World” because of its radically transformative aspirations – was mostly pursued secretively, before opposition could muster. The creation of a new delivery infrastructure for the third EM contract – a consortium model involving four companies working together across the whole country, rather than a duopoly splitting north and south between them, was transparent enough. Capita, a large and prestigious, all-purpose British outsourcing company, was to provide staff and monitoring centres (taken over from G4S and Serco) under the rubric Electronic Monitoring Services (EMS); Buddi was to provide a new “supertag” with both RF and GPS capability; Airbus, an Anglo-French aerospace and defence company was to provide mapping software and Spanish company O2 Telefonica was to provide the mobile telephony services through which GPS data would be uploaded to the monitoring centre. Grayling’s press release celebrating the creation of the consortium was headed “New generation tagging contract boosts British economy” (emphasis added) as if it were more of a business achievement than a penal innovation. The 75,000 target

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was not mentioned, but the MoJ claimed that £9 million would immediately be saved on the previous EM contract, and £30 million in the longer term (Ministry of Justice 2013). Grayling’s decision to redesign the EM contact infrastructure and seek expertise from new companies seemed to be vindicated when G4S and Serco were shown to have been systematically overcharging government for their EM services throughout the second contract, by exaggerating the numbers of people monitored at any given time. Exposure reduced their fnancial standing, damaged shareholders, and temporarily, at least, precluded them from bidding for other government contracts (including the privatising of probation). G4S was required to pay back £109 million, Serco £65 million, and both were referred to the Serious Fraud Offce. To their long-standing critics, stark proof of the outsourcer’s venality was unexpected, but the media-friendly vehemence with which Grayling denounced their abuse of the second contract served to defect scrutiny from the more problematic aspects of his own third contract (National Audit Offce 2013; White 2016; Nellis 2018b). The rationale, format and consequences of part-privatising the Probation Service in June 2014 are dealt with elsewhere in this volume. Suffce to say that the 35 self-governing Probation Trusts were replaced by a new, seven region, National Probation Service with responsibility for advising sentencers and supervising higher-risk offenders, and by 21 Community Rehabilitation Companies, owned by eight different companies or commercial third-sector consortia, responsible for supervising low- and medium-risk offenders. The eight CRCs, each constituted and branded differently, and with considerable autonomy, were procured by the MoJ specifcally to innovate in offender management. Some experimented with reporting kiosks, a tiny, unfulflled innovation that in any case existed prior to privatisation (Doward 2012). A series of reports from the Probation Inspectorate repeatedly showed that CRCs mostly struggled to maintain basic services rather than devising anything creative or original. Indeed, while the MoJ was entertaining techno-utopian hopes of harnessing a sophisticated satellite system to track offenders’ movements in real-time, some fnancially challenged CRCs were reducing contact with their supervisees to telephone calls at six weekly intervals (HMIP 2017). As the National Audit Offce (2017) was later to show, “New World” failed spectacularly due to its own internal contradictions (misplaced faith in a supertag, communication failures between the constituent companies, confused lines of accountability, indifference to an evidence-base and, implicitly, ministerial misjudgement in even authorising the programme) without any external resistance being in play. An early falling out between the MoJ and Buddi over the increasingly unrealistic specifcations of the supertag and the question of sharing intellectual property with consortium partners, the withdrawal of the latter from the consortium and its hasty replacement with Steatite, a British military contractor without GPS experience, was an early sign of problems. Sensing disaster, the right-wing think tank Reform castigated the manifest failings of central contracting, reiterated Policy Exchange’s case for local contracting and its faith in GPS, but to no avail (Lockhart-Mirams et al. 2015). By the time a fully Conservative government

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replaced the Coalition in 2015, New World had not even commenced, not one person had been placed on GPS, despite some £60 million having been spent on its development. In his brief tenure as the new Justice Secretary, Michael Gove, sensibly cut the MoJ’s losses, abandoned the search for a supertag, accepted that RF tagging should remain, paid off Steatite and gave Directorate status to a new team of civil servants tasked with salvaging something viable – and ostensibly more modest – from Grayling’s GPS dream. The failure of New World had implications for Capita, and starkly revealed some of the perils of using outsourcing companies to deliver penal policies. In December 2016 Capita announced a falling rate of proft across all its companies, provisionally attributing it to the effects of post-Brexit austerity on its numerous private and public customers. To make savings of £50 million it sold some assets, cut 2,000 jobs, outsourced 200 jobs to India and increased its use of automation (Davies 2016). One casualty of this was the EM centre in Norwich, which Capita had taken over from Serco. It was closed, with all monitoring operations transferring to its Salford monitoring centre. This was all done to prioritise shareholder interests and profts – which ought not to be determinants of penal policy and practice – but with tacit MoJ support. Capita EMS’s reputation as a public service surrogate took a further hit in February 2017 when the Metropolitan Police arrested 14 EMS staff for allegedly accepting bribes of £400 a time to ft tags loosely on at least 32 offenders – so that they could remove them and leave their homes undetected (Wells and Taylor 2017). Critics’ fears that those administering community sanctions from within a commercial enterprise would sometimes lack requisite public service values were borne out by such reports.

GPS tracking in practice: the “minimum viable product” The EM Directorate’s programme had four objectives, namely to streamline and improve the existing curfew tag provision; to introduce the use of GPS tracking, including a capability for exclusion zone monitoring; to develop a case management system to assist agencies with the application of GPS; and to build an infrastructure which, in the future, could incorporate other types of electronic monitoring and other commercial suppliers. The mainstay of their work was the implementation, oversight and evaluation (some internal, some contracted out) of eight GPS pilot schemes, followed by national roll-out, plus the funding of a ninth pilot administered by the Mayor’s Offce for Crime and Policing. After the fasco of New World, the MoJ understandably maintained a frm grip on process and procedure, but the language of commerce pervaded its work – stakeholders were routinely called “business users”, and the main GPS element of the programme was pitched, rather vaguely, as the “Minimum Viable Product” (MVP). The pilots ran in a cluster of police force areas between October 2016 and March 2018. Rather than using the existing EM supplier, Capita, the MoJ procured a temporary, independent private sector provider – Attenti, formerly Elmotech – to

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supply equipment (tags, battery chargers and mapping software) and establish a monitoring centre (staffed by police) in Hertfordshire. Five cohorts across the criminal justice spectrum were targeted in each pilot – people on court-ordered bail; suspended sentence orders and community orders; Home Detention Curfew; people on Life Licences or on release from Imprisonment for Public Protection sentences, at the discretion of the Parole Board; and people who have not been complying with other forms of release on licence, or release after recall. An IOM cohort was added later, but not evaluated. Four different monitoring modalities were available – stand-alone tracking of movements, use of exclusion zones, verifying attendance at designated locations and curfews. Despite strong, hands-on backup from EM Directorate staff, uptake of GPS was still signifcantly lower than the 1,500 plus expected – 586 individuals (684 if the IOM cohort is included), only 3% of which were women with numbers increasing as awareness and familiarity grew. The bail (220) and release on licence (173) cohorts saw the greatest deployment of GPS, community orders (17) and suspended sentence orders (7) the least. Exclusion and curfews were the main modalities used in the pilot as a whole. Both NatCen’s qualitative and the MoJ’s own quantitative evaluation documented various practical problems and the efforts made to overcome them, e.g. ascertaining what particular risks GPS use could address; the technicalities of devising and communicating exclusion zones; assisting compliance and responding to violations; distinguishing intentional from unintentional noncompliance; identifying factors associated with compliance and undertaking staff and offender surveys about the experience and utility of tracking. Compliance rates were acceptable but not spectacular, but both reports concluded optimistically that GPS tracking was proving its worth in offender management, and that offenders, despite frequent battery management problems, responded positively enough to it (Kerr et al. 2018; Gallisteo et al. 2019). The national roll-out, based this time on NPS regions rather than police regions, now with Capita as the monitoring agency (using G4S tracking devices), began in November 2018, and added people Extended Determinate Sentences to the existing cohorts of those eligible for GPS. Partly with past memories of poor EM implementation in mind, when magistrates in particular had shown little interest in new sentencing options, and partly to ensure no further reputational damage to the MoJ, the EM Directorate had understood from the start that regional stakeholders everywhere would need the same level of support as the pilots, if GPS tracking was to be successfully embedded in practice. The aim – the real Minimum Viable Product – was simply to get GPS established, to make agencies accept it, to insist it was good enough – not to risk unfavourable comparisons with other existing community sanctions which might have prompted questions as to why the MoJ was prioritising it so assiduously. The EM Directorate’s support team were not helped by the climate of mistrust that had grown between sentencers and government (because of court closures, legal aid cuts and chaotic probation reforms) in the years of austerity, which had actually seen a declining use of community sanctions, including EM-curfews (Whitehead and Ely 2018).

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The MoJ internal evaluation had acknowledged that the disappointingly low uptake of GPS in community orders and suspended sentence orders would be problematic if it was maintained in the roll-out, but beyond saying that “further engagement with courts may be required” it was unable to shed light on sentencer’s apparent lack of enthusiasm (Gallisteo 2014: 37). The NatCen evaluation was similarly silent. The MOPAC GPS pilot, however, focussed exclusively on community orders and suspended sentence orders and in its frst year (March 2017 to March 2018) had more success persuading sentencers (in three specifc courts) to use them, with 39 imposed in the former and 34 in the latter, only slightly short of its 75 target. Of these, 12% were women. The MOPAC pilot, which contracted with Buddi to supply both hardware and software, was also notable for the way in which it trained London probation staff to understand both the novelty and the potential of GPS tracking for offender management, Process Evaluation of the Global Positioning System (GPS) Electronic Monitoring Pilot: Qualitative Findings encouraging offcers to use location data in their discussions with supervisees: The routine use of location data as part of offender management practice is a new development and MOPAC have invested time, training and innovation to build momentum around this in local practitioner working cultures. New tools available to probation offender managers included bespoke email notifications highlighting key locations visited by the offender in real time, heat maps and “Top 5 locations of the week” reports, so that patterns of behaviour associated with risk can be uncovered, explored and challenged. (MOPAC Insight and Evidence 2018: 5) MOPAC’s researchers did not interview sentencers directly but feedback from presentence report writers suggested both support and optimism among them about the future. “There was a general feeling that was scope for greater use of GPS tagging, and for its use with higher risk offenders, but that current [CRC and NPS] staffng levels . . . acted as a barrier to this being realised” (idem: 3). The allusion here to material constraints on service capacity is a useful reminder that context-isall when it comes to the implementation of technology.

Sobriety tagging: an isolated experiment? Many community sanctions over the years have been used as a response to alcoholrelated crime, but in 2014, after a long gestation, MOPAC created a tailor-made one. A new Alcohol Abstinence Monitoring Requirement (AAMR), lobbied for by the then London mayor, was inserted into community and suspended sentence orders, prohibiting alcohol consumption for up to 120 days for those given alcohol-related convictions, where alcohol dependency did not apply. This was a response to well-recognised connections between reckless alcohol consumption and crime, particularly violent crime, and drew on US experience with transdermal alcohol monitoring (Bainbridge 2019). The US company Alcohol Monitoring Services (AMS), the world leader in this feld, was commissioned to

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run a “compulsory sobriety” pilot in London between June 2014–2018, using Capita to ft its tags. Although not probation-led, offcers from both the NPS and London CRC provided induction meetings and advice to monitorees, and 1,208 offenders received AAMRs. MOPAC’s own frst-year evaluation showed considerable uptake by sentencers, for a wider range of drink-related offences than the night-time economy offences originally anticipated, with high compliance rates (92%) and comparable (but not better) effects on re-offending than other sentencing options. The MoJ, however, has not made devolved funding available to the London courts for it to resume. The MoJ’s EM Directorate ran two further alcohol-monitoring pilots with AMS, one between June 2017 and June 2019 with the Humberside,Yorkshire and Lincoln CRC, the other for six months from October 2018 in HMP Preston, where alcohol monitoring was made a compulsory licence condition. The CRC project was signifcant because it embedded monitoring into probation practice; AAMRs were always accompanied by supportive interventions, and probation offcers – trained by AMS – ftted the tags, rather than Capita. As with the MOPAC scheme there was no expectation of continuity beyond the pilot stage, and together they remain an isolated experiment, anomalous despite being successful. EM companies undertake pilots, perhaps as loss leaders, because they anticipate more proftable mainstreaming. AMS remains hopeful that sobriety tagging will be taken forward in England and Wales, but is itself expanding beyond its core business, having added both RF and GPS devices to its portfolio, and promoted the use of an “automated decision support system”, as yet with low uptake, in various criminal justice agencies. AMS is a major partner in a new British Security company, Panopticon, which has bid for the recent Home Offce EM contract to monitor immigrants. Since the referendum on EU membership in 2016 the political and economic climate in which EM policy – indeed all policy – is developing is one of unprecedented volatility and uncertainty, making even near-future predictions diffcult. Despite the populist, atavistic sentiments of the winning side (which rarely augur well for “soft” community sanctions, but may accept EM as the price of downgrading probation) a turbo-charged neoliberalism may yet be the main economic outcome of Brexit, in which relentless technological innovation continues to be seen as the route to national prosperity and global prestige. Certainly the MoJ has repudiated New World, but not, it seems, audacious hopes for GPS. When Chris Grayling bragged about the reputation of British criminal justice abroad, it was his putative GPS programme not courts, prisons or probation that he vainly considered world-beating. David Gauke, the Justice Secretary who oversaw the GPS pilots and the beginning of the national roll-out, didn’t brag, but still remained more upbeat about monitoring than about probation. In a speech to Reform, a right-wing think tank, in February 2019, he aligned himself with “smart justice”, characterised thus: I believe we are nearing a time when a combination of technology and radical thinking will make it possible for much more intensive and restrictive conditions to be applied in more creative and fundamental ways outside of prison. I think for some

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offenders we need to revisit what effective punishment really means. Home curfew, driving bans, alcohol bans and foreign travel bans are just some of the options that already exist and which might play a bigger role. (Gauke 2019, emphasis added) The much-vaunted, but qualifed, re-nationalisation of the Probation Service announced in May 2018 (to take effect later) was a victory of sorts for those who had known from the start how misconceived Grayling’s reforms were, but it may not survive Gauke’s tenure as Justice Secretary. In any case, whatever form of probation service emerges in the future – if it emerges – it will not resemble its former self. Too many premises have been sold off by CRCs, too many experienced staff lost, a culture and ethos squeezed out. Any future renegotiation of what community sanctions should be, and who should administer them, will inevitably be data-driven and take account of monitoring technologies, and Unilink (2019), a company supplying reporting kiosks, has already welcomed this.

Conclusion: the (digital) future of community sanctions? Looking back from here to the late 1980s in England and Wales, it can’t really be said that NAPO and the penal reform network were mistaken in their estimation of the threat that EM posed to the probation ideal of humanistic community sanctions: other factors apart from technology eroded confdence in them, but also created the space in which technology could be offered as the solution. Ideologically, all governments since that time have treated the Probation Service as an anomaly and an anachronism, in constant need of restructuring in order to become more effcient at reducing re-offending. Very little that the Probation Service did to improve itself on the basis of evidence-led practice or preserve itself by meeting external targets ensured its survival. While it made an effort to modernise on its own terms much of what it sought to defend as good practice was easily deemed redolent of the social democratic ideals that were being progressively vanquished by neoliberalism. EM, in some shape or form, has been seen by all governments as a more effcient solution to re-offending. Graylings now infamously disruptive reforms were the apotheosis of enduring predilections. Should the Probation Service – and the penal reform network – have engaged more with EM, and sought to wrest it from the private sector? It would have been politically prudent to do so, but it can’t be said with certainty that more convivial futures for EM and probation would have opened up had they done so, given all four governments’ remorseless neoliberalism, perhaps New Labour’s most of all: its meticulous micro-managerial regulation of governance processes and proclivity for spatial prohibitions (“bans”) created a climate which made the time-stamped pinpointing capabilities of EM more desirable. Nonetheless, the studied refusal of NAPO and the Howard League for Penal Reform to engage in constructive debate about EM, to accept the inevitability of some technological change and the political left’s responsibility for shaping it (in this instance supporting defensible uses of EM

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and opposing bad ones) had the dismal consequence of ceding intellectual authority on EM to government, business (in some fora) and right-wing think tanks. It would have been better to contest them, if only to prevent them co-opting many liberal defences of community sanctions, claiming them as their own and craftily packaging EM as something that will enhance them. The Probation Institute (2017) is now engaged with EM, and the Howard League is working towards it, but new challenges lie ahead. All the major right-wing think tanks take for granted that digital technology and innovative practices built on the back of it will dominate the future and that criminal justice will continue to be disrupted by this. While not quite of the same ilk, the Centre for Justice Innovation has conceded that this will be so, and produced evidence that the public will accept whatever makes society safer, if it is applied fairly (Bowen and Gibbs 2018). Big data policing, predictive algorithms, CCTV and facial recognition software, the augmenting of decision-making (about risk, if not sentencing) by machine learning and artifcial intelligence, online legal advice – and EM – are rapidly becoming the new normal in criminal justice. To cope with these immense, accelerating changes, the Centre has developed seven principles that could shape “just [uses of] technology”. The frst of these – “Humanity: new technology should support not supplant the role of humans in the justice system and its introduction should not fetter the right for individuals to interact with human decision makers where they choose to” (idem: 3:) – is commendably aspirational but fails to acknowledge that it is precisely such “people frst” ethics which technology has been supplanting for years. This principle is central to their (really rather old) arguments about EM, which they want to augment rather than displace probation supervision, but it is arguable that events have already gone beyond the point where such an ideal of co-existence is possible. More signifcantly, the Probation Inspectorate is also taking for granted the inevitability of further technological innovation in criminal justice. Its recent “rapid evidence review” of “remote supervision and new technologies in managing probation service users” anticipates such technologies will become more important, as they already have in telehealth and telecare, on a larger scale (HMIP 2019). The review excludes conventional EM, focussing on various forms of automated reporting, including biometric kiosks, telephone- and web-based technologies, audio or video, already in use or upstream, “that allow probation staff and service users to interact while in different locations” (p. 27), apps that assist probation offcers with caseload management (including setting appointments) and “apps that are used by service users to support aspects of their rehabilitation”. The review fnds no defnitive evidence of remote supervision’s impact on re-offending or cost-effectiveness (or other specifed aim), which can, in one sense, be read as HMIP urging caution about its adoption in a context where there may well be political and commercial pressure to use them. It accepts that government may pursue innovation regardless, insisting only that adopting new technologies should be premised on clear arguments about its likely effectiveness, and be properly evaluated.

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What HMIP does not mention is that these kinds of technologies, particularly the use of smartphone apps for rehabilitative purposes, blur the distinction between probation supervision (as traditionally understood) and EM, and as such have greater potential to fundamentally change the character of community sanctions than the original EM technologies. Smartphones are increasingly being pitched as a highly versatile and still relational monitoring technology for lower-risk offenders, a potentially vast market in comparison to the smaller market of medium- to high-risk offenders on whom RF and GPS monitoring has been targeted (Russo and Drake 2017). Smartphones can enable video check-ins (scheduled or on-demand), and operate as portable breathalisers, as well as avoiding the stigma sometimes associated with ankle bracelets. The agencies which undertake offender management in the future may or may not be called probation, but if all, or most, supervisory relationships within community sanctions are to be mediated by smartphone, if location monitoring, educational apps – even virtual reality (Meenaghan et al. 2018) – and communication with supervisers are all to be enabled by a single networked device, there are no obvious claims the public sector could make on them, even if such a sector existed.

Bibliography Bainbridge L (2019) Transferring 24/7 sobriety from South Dakota to South London: The case of MOPAC’s Alcohol Abstinence Monitoring Requirement Pilot. Addiction 114(9), 1696–1705. Bohme G (2012) Invasive Technifcation: Critical Essays in the Philosophy of Technology. London: Bloomsbury. Bowen P and Gibbs B (2018) Just Technology: Emergent Technologies and the Justice System . . . and What the Public Thinks about It. London: Centre for Justice Innovation. Chambers M, Davis R and McLeod C (2013) Power Down: A Plan for a Cheaper, More Effective Justice System. London: Policy Exchange. Cohen S (1985) Visions of Social Control: Crime, Punishment and Classifcation. Cambridge: Polity Press. Davies R (2016) Capita to replace staff with Robots to save money. The Guardian, 8th December 2016. Davies W (2016) The New Neoliberalism. New Left Review 101(September–October), 121–134. Deloitte (2012) Public Sector, Disrupted: How Disruptive Innovation Can Help Government Achieve More for Less. London: Deloitte. Doward J (2012) Probation offcers to be replaced by electronic kiosks in pilot scheme. The Observer, 28th April 2012. Ford M (2015) The Rise of the Robots: Technology and the Threat of a Jobless Future. London: Oneworld. Gallisteo S, Hillier J, Liffen E, Smith H and Stephenson G (2019) Process Evaluation of the Global Positioning System (GPS) Electronic Monitoring Pilot: Quantitative Findings. London: Ministry of Justice Analytical Services. Gauke D (2019) Beyond Prison, Redefning Punishment. Speech by Secretary of State for Justice to Reform, London, 18th February 2019. Geohegan R (2012) Future of Corrections. London: Policy Exchange.

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HM Inspectorate of Probation (2017) Annual Report. London: Ministry of Justice. HM Inspectorate of Probation (2019) A Rapid Evidence Assessment on the Effectiveness of Remote Supervision and New technologies in Managing Probation Service Users. Research and Analysis Bulletin 2019/02. London: HMIP. Kerr J, Roberts E, Davies M, Pullerits M (2018). Process Evaluation of the Global Positioning System (GPS) Electronic Monitoring Pilot: Qualitative Findings. London: Ministry of Justice Analytical Series? NatCen Social Research. Lacey N (2013) Punishment, (neo)liberalism and social democracy. In Sparks R and Simon J (eds) The Sage Handbook of Punishment. London: Sage. Lilly, J R (1992) Selling justice: Electronic monitoring and the security industry. Justice Quarterly 9, 493–503. Lilly, J R and Defem, M (1996) Proft and penality: An analysis of the corrections-commercial complex. Crime and Delinquency 42, 3–20. Lockhart-Mirams G, Pickles C and Crowhurst E (2015) Cutting Crime: The Role of Tagging in Offender Management. London: Reform. Mair G (1998) Technology and the future of community penalties. In Bottoms AE Gelsthorpe L and Rex S (eds) Community Penalties: Change and Continuity. Cullompton: Willan. Meenaghan A, Nee C, van Gelder J L, Otte M and Zarah Vernham Z (2018) Getting closer to the action: Using the virtual enactment method to understand burglary. Deviant Behavior 39(4), 437–460. Ministry of Justice (2013) New Generation Tagging Contract Boosts British Economy. Press Release. London: Ministry of Justice. MOPAC Evidence and Insight (2018) GPS Tagging: First Year Interim Report. London MOPAC. National Audit Offce (2013) The Ministry of Justice’s Electronic Monitoring Contracts. London: National Audit Offce. National Audit Offce (2017) The New Generation Electronic Monitoring Programme. London: National Audit Offce. Nellis M (1991) The electronic monitoring of offenders in England and Wales: Recent developments and future prospects. British Journal of Criminology 31(2), 162–185. Nellis M (2011) The “complicated business” of electronic monitoring. In Taylor R, Hill M and MacNeil F (eds) Early Professional Development for Social Workers. Birmingham: Venure Press/BASW. Nellis M (2014) “Digital by default”? Electronic monitoring as e-governance and “commercial common sense” in England and Wales. Journal of Offender Monitoring 27(2, Fall/ Winter), 15–29. Nellis M (2018a) Electronically monitoring offenders as “coercive connectivity”: Commerce and penality in surveillance capitalism. In Daems T and Vander Bekken T (eds) Privatising Punishment in Europe. London: Routledge. Nellis M (2018b) “The treasure island of the EM market”: State-commercial collaboration and electronic monitoring in England and Wales. In Hucklesby A and Lister S (eds) The Private Sector and Criminal Justice. London: Palgrave Macmillan. Paterson C (2007) Commercial crime control and the electronic monitoring of offenders in England and Wales. Social Justice 34(3–4), 98–110. Paterson C (2009) Understanding the Electronic Monitoring of Offenders: Commercial Criminal Justice in England and Wales. Germany: VDM Verlag. Paterson C (2013) Commercial crime control and the development of electronically monitored punishment: A global perspective. In Nellis M, Beyens K, and Kaminski D (eds) Electronically Monitored Punishment: International and Critical Perspectives. London: Routledge.

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Probation Institute (2017) The Uses of Technology and Electronic Monitoring to Support the Supervision and Management of Offenders in the Community. Position Paper 3(17). London: Probation Institute. Russo J and Drake G (2017) Monitoring with smartphones: A survey of applications. Journal of Offender Monitoring 30(1), 5–8. Wells T and Taylor C A (2017) Lag Tag Blag: Cons bribed staff to remove device. The Sun, 4th February 2017, p 7. White A (2016) Shadow State: Inside the Secret Companies that Run Britain. London: Oneworld. Whitehead S and Ely C (2018) Renewing Trust: How We Can Improve the Relationship between Probation and the Courts. London: Centre for Justice Innovation.

4 WHO NEEDS EXPERTS? THE COMMERCIALISATION OF THE PROBATION IDEAL Maurice Vanstone

Within a period of approximately ffty years the status of the Probation Service has changed from respected agency valued for the contribution it made to the process of sentencing and helping people who came before the courts to another public service deemed to be failing, and thereby ripe for ideological and politically motivated transformation. Concomitantly, it has moved ‘from a traditional social work service based on one-to-one work of supporting those sentenced by the court whilst offering some control to a largely privatised criminal justice agency concerned with the control of offenders (my italics) whilst offering some support to respond to criminogenic needs’ (Deering and Feilzer 2019: 7). In ordinary times, let alone the austerity and Brexit-riven second decade of the twenty-frst century, this transformation and privatisation and the consequential diminution of the Probation Service, categorised by Annison (2019) as a ‘policy disaster’, would demand little attention from the media and even less from the general public.1 Why should it some might ask. After all it is a minor player in the criminal justice system, and what probation offcers actually do (as opposed to misconceptions about do-gooding and taking the side of criminals rather than victims) is abstruse to many people. Why it warrants greater scrutiny and the context within which it has occurred is the subject of this chapter. Intrinsic to the chapter is the premise that protecting communities from the harm caused by crime is partly achieved by helping the perpetrators of that crime to resolve problems and lead law-abiding lives, and success in that endeavour requires the contribution of dedicated and skilled practitioners managed and supported within an organisational culture characterised by idealistic but realistic and self-critical public service. Several commentators have paved the way for clearer understandings of the what and the why of this privatisation process (see for example Burke and Collett 2015; Whitehead 2017), so the chapter does not cover entirely new ground, nor does it seek to provide a simple cause-and-effect analysis. Instead, it refects on the origins and subsequent subversion of the public service

Who needs experts? 49

ideal; reviews the general social, political and historical context of privatisation, rehearses some of the key aspects of the debate about its application to probation and the nuances of the response within the service itself and the possible reasons for its occurrence. It ends with some thoughts about a way forward.

Nothing new under a neo-liberal sky The privatisation vein runs deep. As Peters (1995: 31) in an absorbing history of prisons that begins with ancient Greece reveals, private enterprise within European criminal justice systems extends back to medieval times. By way of illustration he describes how in the 1500s ‘some English prisons were franchisal’ – the king having sold the right to imprison – and derived an income from the difference between the cost of maintaining the prison and prisoners and the money received for their upkeep. Even in the late eighteenth and early nineteenth centuries gaolers had to generate an income from fees paid by prisoners for legal services, fees paid by visitors and sale of bedding and beer (McGowen 1998). Coupled with what in the larger prisons was a lucrative enterprise, the extension of considerable powers to gaolers exposed fundamental and enduring problems associated with the introduction of the proft motive into the criminal justice and penal spheres. For example, gaolers would keep people in prison for not paying their fees, and as a matter of routine, confer better treatment on those prisoners with the necessary fnance, and others paid judges to encourage them to send people to their prison (Mehigan and Rowe 2007). It was not until the Gaols Act 1823 that private trading by gaolers was abolished: applying only to a minority of prisons it did herald, however, the beginning of centralisation and government control, a signifcant feature in the evolution of the modern prison (Blom-Cooper 1978). Arcane though these practices might be seen to the modern eye, it is important to remember that private enterprise was a natural and understandable starting point for prison management at a time before penal power, control and infuence were concentrated within the organisational structure of the State. Less understandable is the return of at least some of that power to the private sector in more recent times, unless the part played by distinct kinds of now familiar political values, doctrines and ideology are taken into account. When considering their rise to prominence, it is tempting, particularly when cornered by the rigidities of some aspects of my own particular political philosophy, to start with Thatcherism and the brutal monetarist policies of the early 1980s, but that would be far too simplistic and critically lazy. In truth, the story of the privatisation and marketisation predates Thatcherism, as some refection on how municipal social services and the concept of public service developed will make clear.

A burden on the taxpayer According to the social historian, Trevelyan (1946: 526), the Municipal Reform Act 1835, notable for abolishing the appropriately named Rotten Boroughs, was perhaps more signifcant insofar as it laid the foundation for ‘the great structure of

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municipal social service for the beneft of all classes of the community, particularly of the poor’ that would be constructed during the next hundred years or so. Admittedly, the full extent of its future role was not foreseen at the time but there was considerable excitement and anticipation not only about the transfer of power from the ‘oligarchies of Tory lawyers, Churchmen and noble men’s agents’ to ‘Dissenters and shopkeepers’ (526) but also about the realisation that all ratepayers could vote in local elections because of the removal of the franchise limitations imposed by the 1832 Reform Act. Trevelyan tempers this excitement with the caveat that public health at that time was not improved by the local authorities and a reminder that it was not until the 1870s that a progressive new age was ushered in by the combination of the rise to prominence of the social reforming mayor of Birmingham, Joseph Chamberlain, and creation of the Local Government Board with the power to enforce the law. Subsequently, the Local Government Act 1888 made the scheme of local government established by the Municipal Reform Act apply generally. Of course, the Charity Organisation Society, established in 1869, coordinated work aimed at helping the deserving poor but as Trevelyan points out the notion of local authorities taking responsibility for alleviating the problems of poverty was already evident, for instance, in schemes of social welfare set up by the London County Council.2 In this way, the groundwork was laid for twentieth-century social services ‘provided by the community for no other reason than that of maintaining or improving individual well-being’ as distinct from services that also have the aim of beneftting the providers (Marsh 1964: 15). In a thought-provoking critique of the future of the newly established welfare state, Marsh3 accepts that where a proft motive exists there is (or should be) an imperative to make sure the services provided are of a good quality but adds that ‘there is obviously the initial motive of beneft to the person providing the service’; and he bolsters that assertion with reference to Adam Smith’s memorable observation that ‘not from the benevolence of the butcher do we expect our dinner but from his regard for his own interest’ (15). Tellingly, in his analysis of the attitudes of the main political parties, Marsh demonstrates that even by the late 1950s and early 1960s, and despite the post-war consensus among all political parties that it was critical to the re-construction of the socio-economic structure of the country, the Welfare State was existentially vulnerable. Predominant thinkers in the Conservative Party such as Iain Macleod, Enoch Powell and Geoffrey Howe (the latter a future member of the Thatcher government) believed that even in a strong, prosperous economy it was only possible to meet demands on public expenditure if the social services were re-constituted in ways that decreased their particular demands on the State. This reluctant acceptance of the need for such services set within an ideal of a self-help society with a much-reduced role of the State was based on the theory that communally paid-for services make people dependant on the State whereas direct individual payment for services render a different attitude towards those services and stimulates a sense of personal responsibility. It was a theory that encouraged some on the right, like the economist Colin Clark,4 to be more forthright and propose the denationalisation of social services.

Who needs experts? 51

The inference, of course, is that provision of help by the State is a burden on the taxpayer but this was hardly new. Gard (2012) in his account of the transition of probation to a fully public service in the ffteen years after the passing of the 1925 Probation Act refers to the debate during the second reading of the bill in which some members of Parliament objected to the salaries of probation offcers placing a further burden on ratepayers. Some caution is appropriate here because this was not an overarching viewpoint: at that time, the Labour Party recognised the social services as part of the apparatus needed to reduce social inequality in a competitive capitalist economy and sustained this position when it assumed power in 1945 and, it might be argued, even when it entered what was to be its longest period of government to date in 1964. Necessary though that caution is, it is evident that a vision of society inimical to public service, based on the unsubstantiated belief ‘that the accumulation of private wealth and private spending’ benefts society and ‘that the accumulation of public wealth and public spending’ is detrimental to society, lay ominously near the political surface (Marsh 1964: 129). He illustrates how pernicious this political perspective was in the 1960s by reference to education, the cost of which ‘is looked upon solely as a current burden and not as an investment for the future [amid] interminable arguments [about] how the burden on the state may be relieved’ (4). Disconcertingly, the determination of the Conservative government to re-tender having acknowledged the failure of Rehabilitation Companies is a clear exemplifcation of how such thinking has not only survived but also reigned supreme over evidence. In a more recent exposition, Ryan (2005), while agreeing that the post-1945 political settlement contributed to the liberalising of criminal justice, suggests that the opportunity for a sustained progressive penal policy was lost because of dissension in Labour ranks about the socio-economic aetiology of crime. Moreover, he chronicles a curious and sometimes contradictory elision of top-down policy (facilitated by deference to those in power) that ignored practitioners and victims, a counter-culture that recognised the voice of the ‘client’, and populist re-negotiation of the political basis of the post-war settlement, that foreshadowed a ‘sustained attack on the established liberal agenda as the rhetoric of neo-classicism overtook that of welfare’ (142). Underpinned by an ideologically driven conviction that private was good and public bad that accelerated the process of importing the private into the public space, the Conservative victory in the 1979 election proved to be the watershed of that attack (Drakeford and Vanstone 2000). It manifested itself in a number of ways. In housing, ownership superseded council provision through the sale of council houses, and the Housing Act of 1988 introduced Housing Action Trusts thus breaking up the local authority monopoly over a wide range of types of dwelling; in education, the assisted places scheme endorsed the supposedly inherent superiority of private over public education and the Education Act 1988 allowed the opting out of local authority control; in health, covert tax concessions accrued from the use of private health care; and in social security, the non-state pension was effectively privatised (Drakeford and Vanstone 2000. Even when the government

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entrusted community care to local authorities it was done grudgingly on condition that three quarters of the funds were used to buy in services from the voluntary and private sector. Privatisation had become ‘more than simply a part of a strategy to save public money’ and was sustained by the belief that both the production and delivery of public services were best served by competition rather than cooperation (Drakeford and Vanstone 2000: 370). With echoes of a Victorian mantra, deserving and undeserving, troublesome people were deemed responsible for their own predicament and futures, and nowhere was this more apparent than in a criminal justice system increasingly pervaded by a market philosophy. New Labour, if not completely detached at least semi-detached from the Labour position described by Marsh, ‘opened the door to private providers in probation’ and marketisation through a combination of the National Offender Management System (NOMS), contestability and the commission of services from the voluntary and private sector (Fitzgibbon 2011: 164). Throughout this period, the criminal justice and penal systems endured other travails that, coupled with developments outlined earlier in the chapter, helped form a perfect ideological storm and a buffeted environment conducive to untrammelled marketisation.

Penal crises, political leverage and dystopian vision Following prison riots and the Thatcher government’s Law and Order policy, the penal system of the 1980s was in crisis (Cavadino and Dignan 2002). Readers interested in their formulation of different accounts of the crisis – orthodox, radical and mainstream – should refer to the original incisive text, but it is the latter that is pertinent here because of its emphasis on the collapse of the rehabilitative ideal, the erosion of the rehabilitative component of incarceration, and the prominent position given to management and control. Crises create political opportunities and crime was by now a potential vote winner. Needless to say, the use of crime to manipulate public opinion is not new but the inclusion of law and order in offcial party policy is relatively recent as Downes and Morgan’s (1997) politicisation of crime thesis evinces. Briefy, after the Conservative Manifesto of 1959 both parties included policies related to criminal justice and penal policy in their election campaigns and this reached its apogee in the 1979 election when the Conservatives laid bare their commitment to getting tough on crime and the Labour Party began its slow drift to a strategy of neutralisation rather than direct assault on such policies. In the process, punishment and rehabilitation became political commodities to be sold to the electorate. As the story so far illustrates, it is all too easy to fall into the trap of thinking that the civilisation process is always progressive. In a lucid analysis, Pratt (2005), using the example of Germany in the 1930s where the civilising development of technology and bureaucratic skills coupled with the decivilising infuence of antiSemitism resulted in the Holocaust, demonstrates that civilisation and decivilisation occur alongside one another in different societies. In a more contemporary but equally illuminating reference, he juxtaposes globalisation, mass communication

Who needs experts? 53

and tolerance of difference (civilising) to threat of strangers, new punitiveness and fragmentation of the State (decivilising). As for criminal justice, he identifes a decivilisation process that has been responsible for a shift from the organisation of penal power by the State, the specialisation of punishment based on expertise and scientifc knowledge leading to reform and re-integration (public sentiment excluded) to the prioritising of ‘expressions of public opinion to the complete exclusion in some cases of any input from scientifc expertise’ (257). The signifcance of these insights is sharpened when placed alongside the politicisation of crime, the subsequent change in offcial discourse (beginning in the 1960s) from confdence in the penal-welfare strategy to uncertainty and the need to re-think the response to crime (Garland 1996). A corollary of this uncertainty was a drift away from direct State action to the activation of organisations and agencies outside of the State – what Garland characterises as a ‘responsibilization strategy’ (italics in the original) in which ‘the state seeks to bring about action on the part of “private agencies” and individuals’ (452) through the identifcation of competent, capable organisations such as Neighbourhood Watch, Crime Concern and Safe Cities. As Garland indicates, this is not simply an off-loading of responsibility but more like government at a distance, more ambitious than the penal-welfare policy of reforming people in so far as it endeavours to change ‘the norms, the routines, and the consciousness of everyone’ (454). Predictably, when social and economic policies increase poverty and social exclusion this is diffcult to achieve and politicians, therefore, revert to a more easily delivered punitive approach, attractive because it appears to be a strong, reassuring response to crime. Given impetus by the perverse and contradictory conceptualisation of people who offend as dangerous outsiders but legitimate targets of private enterprise like the rest of society, responsibilisation conveniently dovetails ‘strategies of privatisation and public expenditure reduction which commanded such support from conservative governments of the 1980s and 1990s’ (453). Unsurprisingly, this change of direction is accompanied by an everincreasing gap between political decision-making and evidence-backed advice that in turn opens the door for political decisions to reduce the State’s involvement in what are deemed expensive responses to crime and allows ‘private enterprise to process deviant populations for proft’ (Cohen 1985: 63). Economy is prioritised over effcacy, the distinction between public and private becomes less distinct and social control becomes privatised because like social welfare it places excessive demands on the taxpayer. The subsequent privatisation and commercialisation that began with court escort duties not only changed the nature and processes of social control but expanded it while public interest gave way to the requirements of consumers and stakeholders (Garland 2001). Within the compass of Cohen’s analysis this comprises a weaker form of privatisation in which the State awards contracts linking payments to some pre-determined form of success. For others the neo-liberalism underpinning this trend not only reduces the role of the State but involves a re-adjustment of ‘the parameters of civil society’ that excludes the poor (Young 1999: 51). Privatisation in the criminal justice system, even the weaker, contract-based form outlined by Cohen, required an appropriate internal structure based on an ‘ethos

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of business management, monetary measurement and value-for-money government’ (Garland 2001: 116) and by the mid-1980s it had taken shape. Boosted by the introduction of computerised information systems, it featured among other things, devolved fnancial responsibility for reduced budgets, reduction of practitioner autonomy, measurement of performance, increased accountability and new decision-making mechanisms. However, it also presented an opportunity for the service to enhance its position as a learning organisation committed to evidenceinformed practice, an opportunity undermined in part by fears among some of a regression to the treatment model and pathologising the individual.

Why not privatisation? In the midst of what might be deemed an overdue process of modernisation, there were mixed views on how vulnerable the service was to privatisation. Drakeford (1988), while admitting that in order to decrease its vulnerability the service needed to improve its responsiveness to consumers, accountability and internal organisation, increase more active union rejection of detrimental change and re-state humanistic values, was optimistic that its small size and magistrates’ support would inure it against marketisation. Conversely, Vass (1988: 51) was not only less optimistic but also prescient when he warned that non-custodial penal measures were as vulnerable to privatisation as prisons and that it was the lack of a strong, shared social identity that could leave the service vulnerable to ‘eager external idealogues’ promoting ‘rationalisation’. As an examination of the debate surrounding the issue of privatisation reveals not everyone viewed the prospect of privatisation negatively and some rehearsed the arguments for privatisation using prison as an example. Matthews (1990: 51) acknowledged that operational problems had weakened the arguments for cost reduction, private prisons and electronic monitoring, but asserted that there is ‘nothing inherently negative or undesirable about privatisation [and it] offers the possibility of a more pluralistic, responsive and effcacious system of criminal justice’, and that the argument for funding and provision of specialist, privately run programmes in the feld of drug treatment, employment and resettlement programmes was particularly strong. Private prisons, it was claimed, were cheaper to build and run, more fexible in terms of staffng, reduced the power of trade unions and (as a result of contracting out) stimulated innovation and ideas (Mehigan and Rowe 2007). Others, while in favour of marketisation, were critical of its manifestation within the criminal justice system contending that in a fexible free market the person serving the sentence is a customer with the right to choose services appropriate to their needs (Stacey 2012). Approving of privatisation though some of these are, on balance most are critical. Casting a critical eye on America, Teague (2011) accedes to the observations of some that correctional fees – that is fees paid by users of services – have led to smaller caseloads and a greater sense of personal responsibility in the probationer but emphasises the negative effects, namely that poor people’s diffculty in raising fees

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increases economic stress and breach of orders through non-attendance, and that the fee-paying culture disincentives early termination and compromises the neutrality of the practitioner. In addition, these problems are exacerbated, frstly by the reality that most supervision programmes in America are unevaluated, decentralised, fragmented and run by various probation agencies with different cultures, and secondly, by the unintended consequence that practitioners are conficted by their attempts to reconcile support with punishment and community safety. Criticism has an ethical dimension too. Morris (1998: 227–228) is sanguine about earlier contracting out of specifc services such as medical care, counselling and education in the United Kingdom, but categorical in his judgement that ‘delegation by government, to private business, of the power to imprison and, necessarily, the power to use force to maintain order, prevent escape and the like, raises troublesome legal and ethical questions’. Specifcally, these are the generation of a fnancial interest in increasing the prison population and the negative impact on policy decisions about alternatives to prison even when there is evidence about their effciency and cost saving. Complementing this line of reasoning, Fitzgibbon (2013) questions the legitimacy of privatised infiction of pain on people regardless of cost effectiveness and legality, but focuses on the detrimental impact of privatisation on probation and specifcally on the high levels of trust and cooperation between agencies needed when dealing with the complex problems of probationers who may present a risk to society. Against a backdrop of the additional concern that privatisation might encourage simplistic binary measurements of risk that ignore complex dimensions such as self-harm and addiction, she warns that the stark choice is either ‘consolidation of a society based on surveillance, control and warehousing of an underclass or the resurrection of tradition [sic] probation through social work with offenders’ (88–89). The radical right agenda of reducing the power of unions and breaking up state monopolies premised on one principle, namely that ‘in the unalloyed operation of the market, private proft must always drive out public initiative’ is the target of an unreservedly polemical Drakeford (1988: 43). With a reminder of Arthur Seldon’s (Thatcher confdant) assertion that destroying the Welfare State was patriotic he accentuates the dubious morality of privatising decisions that compromise individual freedom and privacy, increase the likelihood that sensitive information about people may be leaked and the risk that private providers, concerned about contract renewal, might conceal or falsify data to avoid being implicated in blame for any failures. These concerns aside, at this time Drakeford thought that the danger to the Probation Service was not from direct privatisation but from it being by-passed by electronic monitoring agencies and voluntary organisations reliant on government subsidies and consequently not independent. More recently, in their discussion of NOMS, Raynor and Maguire (2006: 31) cast doubt on the extent to which a new organisation that prioritises contestability and ‘offender management’ over practitioner skills, motivation and quality of service delivery can achieve avowed aims of motivating probationers, supporting personal change and maintaining relationship continuity. Nor was this disquiet confned to probation practitioners

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and commentators. Members of the House of Commons Committee of Public Accounts (2014: 5–6) expressed concern that the proposed reforms to ‘a vital public service’ were complex and risky, that the government had a poor track record in managing procurements and contracts and ‘would need to avoid repeating mistakes which we have already highlighted in previous reports’. Predictably, perhaps, these warnings went unheeded. Adroitly, Whitehead (2017) gathers together all of the arguments of those against privatisation in a succinct and powerful assertion that its implementation is the fnal act of the ‘politically imposed process of modernisation [and] the ideological and material reconstruction of probation on [a] neoliberal platform’ that prioritises the rational choice of people committing offences over more complex causal explanations (136).

The politics of cognitive dissonance For some, if not all of the reasons explored earlier in the chapter, the Probation Service has succumbed to privatisation with obvious impact on members of staff. Most of the literature on what Robinson et al. (2016) describe as ‘privatization journeys’ has been focused on larger organisations like the police and the National Health Service, but the probation story is now being told. In their ethnographic study of one Probation Trust going through transformation, Robinson and her colleagues unearthed distinct themes including insecurity, liminality (working in a temporary situation between two worlds), separation and loss, status anxiety, loyalty and trust and liberation and motivation. Deering and Feilzer (2017: 169) found practitioners ‘frustrated with changes clashing with their political views’, concerned about an erosion of probation values and doubting their self-legitimacy. Important and revealing though these studies are, how and why members of the service have accepted and adjusted to change is less understood. In one survey of managers, Deering et al. (2014) found motivations for joining the private sector to be pragmatic and related to job satisfaction, autonomy, dynamism in the private sector and genuine interest in the job. Individual decisions like these were clearly an important part of the recent changes to the service but Transforming Rehabilitation, the result of a long process of change instigated by several governments, has, it is suggested, been aided by a general lack of resistance within the service itself (Deering and Feilzer 2019). According to Deering and Feilzer, the pre-eminence of neoconservatism with its baggage of rational choice theory, punishment, deterrence, retribution and ‘offender’ management has changed the offcial identity of the service and imbued it with new ‘offcial’ values. In practical terms, the cumulative effect of the Statement of National Objectives and Priorities (SNOP), Punishment in the Community, Labour’s shift to being tough on crime and tough on the causes of crime, the more punitive community orders introduced by the Criminal Justice Act 2003 and the long-term aim of commissioning ‘probation services’ from the public, private and voluntary sectors, was a service ‘at odds with itself ’ and ripe for marketisation (18).

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Assuming a lack of resistance to such change within an organisation like probation, how can this be explained? Commitment to helping people to change their lives and a desire to work effectively in a public rather than a commercial service will not have suddenly faded away: even the limited size of the service and its lack of industrial muscle do not in themselves offer a full explanation. Naturally, people who have careers, mortgages and families to sustain are likely to be conficted and under pressure with the result that privately held attitudes may not correspond to behaviour. Aged though it is, Leon Festinger’s (1957) theory of Cognitive Dissonance still throws some light on what happens when such inconsistencies between two elements occur. Notably, he theorised that ‘[w]hen an opinion must be formed or a decision taken, some dissonance is almost unavoidably created between the cognition of the action taken and those opinions or knowledge which tend to point to a different action’ (5). In general, people try to achieve internal consistency, but when dissonance-creating inconsistencies do occur they try to rationalise them.5 Put simply, his basic hypothesis is that dissonance creates psychological discomfort, a need to reduce it and avoidance of anything that might increase the discomfort. Those employed in the CRCs are, therefore, faced with a choice between modifcation of feelings or behaviour in response to new information, or changing an environmental cognitive element – for example changing a situation over which they have little control (unless, of course, they leave). Festinger describes resistance to reduction of desistance occurring if it involves too much pain or loss or the present behaviour is otherwise satisfying or change is not possible. Avoidance, for instance, might involve seeking relationships with like-minded people or adding new cognitive elements, for example a smoker seeking out new information that counters research evidence of the harmful effects of smoking. Public compliance without change in private opinion occurs when there is a threat of punishment and/or special reward for compliance, and for probation workers the punishment is loss of career and the reward its continuance. In what might be a part explanation for the failure of the CRCs and a lesson for politicians, he refers to the example of job changes in a factory causing a drop in levels of production and empirical evidence that forced ‘dissonance is to some degree an inevitable consequence of forced compliance’ (89). It is a lesson that politicians who knowingly or otherwise rely on the impact of cognitive dissonance on staff coerced into the private sector might be disinclined to heed.

Discussion and conclusion In the light of the recent commitment of the government to re-nationalisation and its acknowledgement that the Transforming Rehabilitation experiment has failed, there is reason to be optimistic that not only will the ideal of dedicated public service committed to effectively helping people change their lives for their own good and the general good of society be restored but also that proft-related performance will be replaced by the principle of effective practice. However, a predilection for privatisation lies at the heart of conservative politics so it remains necessary to

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examine what is required to re-establish probation as an imaginative and effective public service focused on helping people who offend to lead good lives and protecting communities from the harm caused by crime.6 First and foremost, there has to be a fundamental change in the dominant political philosophy so that the funding of public services is seen as a beneft to taxpayers rather than a burden to be relieved. Such a change seems improbable in the current political climate but it falls to those with a vision of a more just, equal and benevolent society to continue engagement in the requisite reasoned argument. If social policy is the response of government to basic human needs of employment, education, safety, health, accommodation and emotional well-being, then what that vision must encompass is a fundamental re-alignment and unifcation of its various strands which recognises their inter-relationship and inter-dependence. If, as is essential, that re-alignment is to include a probation service re-instated as a public service, it would require a diffcult but achievable re-affrmation of its values and idealism. In his study of the beliefs, values and motivations of modern practitioners, Deering (2011) found a down-to-earth adherence to government aims juxtaposed to a degree of idealism in explanations for crime, and belief both in people’s ability to change the direction of their lives and the helping process itself. The notion of management of people was, by and large, an anathema to many practitioners. Mawby and Worrall’s (2013) slightly later study produced a picture that was partly complementary and partly contradictory. They categorised their interviewees as those for whom probation is a vocation and a commitment for their working lifetime (lifers); those who joined the service after its political transformation into an enforcement agency (second careerists) and those who joined the service after 1997 (offender managers). In his recent focus on professional practice within the CRCs Clare (2015) stresses the importance of probation values and culture as a counterbalance to the threat posed to practice by privatisation and its accompanying cost reduction and employment of unqualifed staff. Optimistically, he argues that the basic values of the service sustain a commitment to the possibilities of change and respect for the individual as a member of the local community, and account ‘for a widespread sense of vocation in the probation community’ (53). Collectively, these contributions suggest that the vocational aspect of probation remains in as much as its work involves dedication and altruism, and it is an argument of this chapter that if the Probation Service is to rediscover itself as a public service it needs a preponderance of lifers who have a vocation.7 This is not meant to imply that traditional probation values could not have survived under privatisation: of course, it is possible that they could have but the point is that helping people lead law-abiding lives is demanding work that requires the kind of high motivation and dedication that may stem more from a sense of vocation than fear of failure or the proft motive. Vocation alone, however, is not enough. ‘Pragmatic idealists’ need not just appropriate, relevant values and good intentions but also high levels of appropriate skill (Raynor et al. 2014; Raynor and Vanstone 2018). That acquisition of skills depends on effective pre- and post-entry training informed by evidence and empiricism. In

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their exploration of the pursuit of excellence and learning, Cowe et al. (2007) prescribe a collaborative, realistic and non-prescriptive model of research (incorporating four elements) that exploits both academic and practice expertise: real scepticism; openness (to disciplines capable of offering causal explanations); collaborative commitment to observation and verifcation (involving practitioners at a local level); and self-critical refexivity (about theory and practice). The re-emergence of probation as a just public service ft for purpose and suffciently robust to withstand the pressures of current political and societal pressures is dependent on all the previously mentioned factors, but all will be to no avail unless at its heart it is unafraid of accountability and draws its strength from a rational, imaginative and self-challenging approach to practice.

Notes 1 Shortly after a first draft of this chapter was completed, the Minister of State for Criminal Justice, David Gauke, announced the re-nationalisation of the Probation Service. So, even a government wedded to the general principle of privatisation has acknowledged the extent of that policy disaster. 2 He makes an interesting observation that the idea of helping professions had its roots in how nursing was perceived after the crucial role it had played in the Crimean War. 3 Then Professor of Social Science at Nottingham University. 4 A prominent and influential twentieth-century economist in the United Kingdom and later in Australia. 5 He replaces ‘inconsistency’ with the word ‘dissonance’ and ‘consistency’ with ‘consonance’. 6 This is not to exaggerate the part probation can play in reducing crime, rather it is to reaffirm the significance of its traditional place within the criminal justice system and, in particular, within the court’s sentencing process. 7 Not necessarily in the religious sense described long ago by Le Mesurier (1935).

Bibliography Annison, H. (2019) ‘Transforming rehabilitation as ‘policy disaster: Unbalanced policy-making and probation reform’, Probation Journal 66, 1, 43–59. Blom-Cooper, L. J. (1978) ‘The centralization of governmental control of national prison services, with special reference to the Prison Act, 1877’, in J. C. Freeman (Ed) Prisons, Past and Future. London: Heinemann. Burke, L. and Collett, S. (2015) Delivering rehabilitation: The Politics, Governance and Control of Probation. London: Routledge. Cavadino, M. and Dignan, J. (2002) The Penal System: An Introduction. Third Edition. London: Sage. Clare, R. (2015) ‘Maintaining professional practice. The role of the probation offcer in the community rehabilitation companies’, Probation Journal 62, 1, 49–61. Cohen, S. (1985) Visions of Social Control: Crime, Punishment and Classifcation. Cambridge: Polity Press. Cowe, F., Deering, J. and Vanstone, M. (2007) ‘From eclecticism to orthodoxy in practice’, in S. R. Smith (Ed) Applying Theory to Policy and Practice. Issues for Critical Refection. Aldershot: Ashgate. Deering, J. (2011) Probation Practice and the New Penology: Practitioner Refections. Aldershot: Ashgate.

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Deering, J. and Feilzer, M. (2017) ‘Questions of legitimacy in probation practice after transforming rehabilitation’, Howard Journal of Criminal Justice 56, 2, 158–175. Deering, J. and Feilzer, M. (2019) ‘Hollowing out probation? The roots of transforming rehabilitation’, Probation Journal 66, 1, 8–24. Deering, J., Feilzer, M. and Holmes, T. (2014) ‘The transition from public to private in probation. Values and attitudes of managers in the private sector’, Probation Journal 61, 3, 234–250. Downes, D. and Morgan, R. (1997) ‘Dumping the “hostages to fortune”? The politics of law and order in post-war Britain’, in M. Maguire, R. Morgan and R. Reiner (Eds) The Oxford Handbook of Criminology. Second Edition. Oxford: Clarendon Press. Drakeford, M. (1988) ‘Privatisation, punishment and the future for probation’, Probation Journal 35, 2, 43–47. Drakeford, M. and Vanstone, M (2000) ‘Social exclusion and the politics of criminal justice: A tale of two administrations’, Howard Journal 39, 4, 369–381. Festinger, L. (1957) A Theory of Cognitive Dissonance. Stanford: Stanford University Press. Fitzgibbon, W. (2011) Probation and Social Work on Trial:Violent Offenders and Child Abusers. London: Palgrave Macmillan. Fitzgibbon, W. (2013) ‘Risk and privatisation’, British Journal of Community Justice 11, 2–3, 87–90. Gard, R. (2012) ‘The creation of a ‘fully public service’. Probation in England and Wales between the wars’, Probation Journal 59, 4, 323–338. Garland, D. (1996) ‘The limits of the sovereign state. State strategies of crime control in contemporary society’, British Journal of Criminology 36, 4, 445–471. Garland, D. (2001) The Culture of Control: Crime and Social Order in Contemporary Society. Oxford: Oxford University Press. House of Commons Committee of Public Accounts (2014) Probation: Landscape Review. London: The Stationary Offce Ltd. Le Mesurier, L. (1935) A Handbook of Probation. London: National Association of Probation Offcers. Marsh, D. C. (1964) The Future of the Welfare State. Harmondsworth: Penguin Books Ltd. Matthews, R. (1990) ‘New directions in the privatisation debate’, Probation Journal 37, 2, 50–59. Mawby, R. C. and Worrall, A. (2013) Doing Probation Work: Identity in a Criminal Justice Occupation. Abingdon: Routledge. McGowen, R. (1998) ‘The well-ordered prison: England, 1780–1865’, in N. Morris and D. J. Rothman (Eds) The Oxford History of the Prison: The Practice of Punishment in Western Society. Oxford: University of Oxford Press. Mehigan, J. and Rowe, A. (2007) ‘Problematizing prison privatisation: An overview of the debate’, in Y. Jewkes (Ed) Handbook on Prisons. Cullompton: Willan Publishing. Morris, N. (1998) ‘The contemporary prison: 1965-present’, in N. Morris and D. J. Rothman (Eds) The Oxford History of the Prison: The Practice of Punishment in Western Society. Oxford: University of Oxford Press. Peters, E. M. (1995) ‘Prison before prison: The ancient and medieval worlds’, in N. Morris and D. J. Rothman (Eds) The Oxford History of the Prison: The Practice of Punishment in Western Society. Oxford: University of Oxford Press. Pratt, J. (2005) ‘Elias, punishment and decivilization’, in J. Pratt, D. Brown. M. Brown. S. Hallsworth and W. Morrison (Eds) The New Punitiveness: Trends, Theories, Perspectives. Cullompton: Willan. Raynor, P. and Maguire, M. (2006) ‘End-to-end or end in tears? Prospects for the effectiveness of the National Offender Management Model’, in M. Bough, R. Allen and U. Padel

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(Eds) Reshaping Probation and Prisons: The New Offender Management Framework. Researching Criminal Justice Series. Bristol: The Policy Press. Raynor, P., Ugwudike, P. and Vanstone, M. (2014) The impact of skills in probation work: A reconviction study. Criminology and Criminal Justice 14, 2, 235–249. Raynor, P. and Vanstone, M. (2018) What matters is what you do. The rediscovery of skills in probation practice. European Journal of Probation 10, 3, 199–214. Robinson, G., Burke, L. and Millings, M. (2016) ‘Criminal justice identities in transition: The case of devolved probation services in England and Wales’, British Journal of Criminology 56, 1, 161–178. Ryan, M. (2005) ‘Engaging with punitive attitudes towards crime and punishment. Some strategic lessons from England and Wales’, in J. Pratt, D. Brown. M. Brown. S. Hallsworth and W. Morrison (Eds) The New Punitiveness: Trends, Theories, Perspectives. Cullompton: Willan. Stacey, C. (2012) ‘The marketisation of the criminal justice system: Who is the customer?’, Probation Journal 59, 4, 406–414. Teague, M. (2011) ‘Probation in America’, Probation Journal 58, 4, 317–322. Trevelyan, G. M. (1946) English Social History: A Survey of Six Centuries Chaucer to Queen Victoria. London: Longmans, Green and Co. Ltd. Vass, A. A. (1988) ‘The marginality of community service and the threat of privatisation’, Probation Journal 35, 2, 48–51. Whitehead, P. (2017) Transforming Probation: Social Theories and the Criminal Justice System. Bristol: Policy Press. Young, J. (1999) The Exclusive Society: Social Exclusion, Crime and Difference in Late Modernity. London: Sage.

5 THE GIFT RELATIONSHIP What we lose when rehabilitation is privatised Lawrence Burke and Steve Collett

Introduction: blood transfusion and the (im)morality of the market Fifty years ago, Richard Titmuss’s (1970) brilliant analysis of private blood transfusion systems starkly outlined the deleterious impact that market forces can have both on and beyond the sharp end of the service itself. Using blood transfusion as a metaphor for human care, The Gift Relationship: From Human Blood to Social Policy wasn’t simply an ideological attempt to reassert altruism as a societal goal; rather it was a quantitatively based and rigorously researched approach to highlighting the consequences of using the market to distribute social goods. He concluded that: From our study of the private market in blood in the United States we have concluded that the commercialisation of blood and donor relationships repress the expression of altruism, erodes the sense of community, lowers scientific standards, limits both personal and professional freedoms, sanctions the making of profits in hospitals and clinical laboratories, legalizes hostility between doctor and patient, subjects critical areas of medicine to the laws of the marketplace, places immense social cost on those least able to bear them – the poor, the sick and the inept – increases the danger of unethical behaviour in medical science and practice, and results in situations in which proportionately more and more blood is supplied by the poor, the unskilled, the unemployed, Negros [sic] and other low income groups. (Titmuss 1970: 245–246) Titmuss, furthermore, explored the role that governments should, or could, play in providing protection from the market in order to best meet human needs, in this case in terms of health care. He contended that those practices and institutions

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which nurture and support best practice are not only characterised by trusting relationships, publicly accountable systems of delivery but they also encourage the provision of services in ways that bind society together (see Mukta 2011). Titmuss was, of course, writing shortly before the ascendency of a concerted neoliberal mindset that has dominated contemporary political and economic thinking and as such his work serves as a prescient warning of what was to follow. The case of Thomas Barrett can therefore be viewed as a contemporary dystopian example that highlights Titmuss’s concerns within the arena of contemporary criminal justice: Thomas Barrett, a former Georgia probationer, stole a $2 beer, was fined $200 by the court – and ended up owing more than $1,000 to Sentinel Offender Services, the company supervising his probation. He resorted to selling his own blood plasma twice a week to pay Sentinel, according to an account he gave to Human Rights Watch. (Gambino 2014) Driven by the desire to reduce costs,many American states are becoming increasingly reliant on an offender-funded probation model overseen by for-proft companies that manage probation requirements, electronic monitoring, drug-testing and fne collection. It is a lucrative business as there is no cap on the amount of fees that private probation companies can charge individuals, even those convicted of minor offences such as driving without a licence or being drunk in a public place. According to Human Rights Watch, rates for basic supervision range from $35 to $100 per month, where additional services such as Global Positioning System (GPS) monitoring or drug testing can cost upwards of $180 to $360 per month (Gambino 2014). In some cases, probation fees can be more than twice that of the court-ordered fnancial penalties. Unsurprisingly, many of those placed on probation only do so because they can’t pay their court fnes in the frst place and become increasingly unable to afford the probation fees accrued to the private company. Within this context, probation is ultimately reduced to a concern with debt collection and boosting the coffers of those companies providing so-called pay only probation. Whilst this extreme form of ultra-privatisation has not and is unlikely to pervade the English and Welsh probation services, the announcement in 2010 of a Rehabilitation Revolution (Ministry of Justice 2010) put the National Probation Service (NPS) on notice that it would be subject to the supposed rigours of the market. Indeed, the push for privatisation saw signifcant NPS resources privatised under the subsequent Transforming Rehabilitation Strategy (2013a, 2013b). With the creation of 21 Community Rehabilitation Companies (CRCs), some 70% of probation resources were, after complex transitional arrangements, privatised and became fully operational on 1 February 2015 (for a detailed description see Strickland 2016; Burke and Collett 2015, 2016). Seven of the eight companies awarded contracts ftted directly into the defnition of privatisation provided by Phil Bean in his introductory chapter (see also Bean 2019: Chap 2) and were now running 20 of the 21 CRCs.

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Bean suggests that the privatisation debate is framed under two headings – that of cost/effciency and as a moral/ethical argument about rights and duties under the rule of law. Our concern in this chapter is to concentrate on the moral and ethical issues of privatisation but through the lens of operational realities and the experiences of individual users and workers engaged in the rehabilitative endeavour. In doing so, we will argue that cost reduction and enhanced effciency, rather than being delivered through the market, can also be the outcomes from pursuing the moral nature and humanistic enterprise of the rehabilitative endeavour that incorporates and champions understanding, support and belief in the capacity of individuals to make good. Indeed, in revisiting Titmuss’s work, it seems to us that we have learnt little from the impact of the market not only on what are essentially social goods but also the very notion of altruism itself – the right to give (Titmuss: 237–246). Altruism is a moral concept but one which, we will argue, can deliver tangible outcomes in terms of supporting the individual’s journey to a new non-offending identity and reintegration within our communities. At present, it is under threat not because probation staff and criminal justice workers lack it or have lost faith in it but because the fundamental basis of marketised rehabilitative services linked to the obsession with speed and apparent effciency in criminal justice processes makes it more diffcult to express with service users on a daily basis. As Ken Pease refected prior to the recent race to privatise,‘personal altruism survives intact only in organisations conducive to it’ (1999: 14). Additionally, there is also a threat to altruism itself and the general capacity of communities to respond to the reintegrative needs of individuals when so many are facing the harsh cruelty of a sustained period of economic austerity which is removing fundamentally important local services and as importantly stripping the poorest communities of their resilience to weather the current economic realities. In arguing that the impact of probation privatisation cannot be understood without reference to wider criminal justice policies (which in themselves refect the neoliberal mindset of privatisation) and wider economic austerity, we are suggesting that the logic of neoliberalism threatens public protection and rehabilitation, civil society, occupational culture and professional ethics, trust in our key criminal justice institutions and ultimately transfers the cost of offending onto the most vulnerable. These themes, to which we now turn, call upon the language of criminal justice but in essence, they mirror those that Titmuss highlighted in the business of blood transfusion nearly 50 years ago.

Subjecting public protection to the laws of the marketplace His [Grayling’s] proposed community rehabilitation companies turned out to be a front for frms that over claimed what was possible in absurdly demanding contracts focused only on hitting short-term targets. (Hutton 2019)

Of all state-run social services in the United Kingdom, the Probation Service for England and Wales has rarely received much public attention except, perhaps, when

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perceived catastrophes occur in the supervision of a dangerous offender resulting in an individual being harmed or killed. However, over the recent past, as the public have become more jaundiced over yet another failure of the private sector to deliver what were once state-run services, the media have taken an increasing interest in what can only be described as the debacle of Transforming Rehabilitation (TR). Throughout 2018 and 2019, the satirical magazine Private Eye published a series of investigative pieces highlighting the developing fnancial diffculties and staffing problems enveloping the private sector Community Rehabilitation Companies (CRCs) who are currently responsible for supervising some 70% of those who were, until 1 February 2015, subject to statutory supervision by the Probation Service. The problems are not simply technical ones requiring a recalibration or tweak around resources, training or logistics but point to deeper political and philosophical concerns. As the quote from Will Hutton insinuates, probation privatisation is part of a deepening and entrenched approach to the delivery of public services over decades (see also Toynbee and Walker 2017). Capitalism, Hutton argues, is not the answer to everything – ‘Even on its own terms, markets have to be designed, companies carefully constituted, values asserted and incentives regulated. Privatisation cannot be unleashed, unfettered on areas from health to army recruitment, which have duty and citizenship at their heart’ (Hutton 2019). We do not, however, need to rely on the investigative skills of journalists or the ideological preferences of media writers to discern the parlous state of the Conservative government’s Rehabilitation Revolution (Ministry of Justice 2013a) and its delivery strategy, Transforming Rehabilitation (Ministry of Justice 2013b). From 2014 onwards, the government’s own watchdog, Her Majesty’s Inspectorate of Probation (HMIP), had produced a set of Early Implementation reports showing a range of worrying early signs of the problems that Transforming Rehabilitation was creating. In addition, in a series of reports and inquiries over the recent past by the National Audit Offce (NAO 2014, 2016, 2017, 2019), the House of Commons Justice Committee (2018) and a current Public Accounts Committee Progress Review (House of Commons 2019), the emerging and developing problems of the part privatisation of probation services have been forensically exposed. HMIP has published a series of reports on individual CRCs which have demonstrated major weaknesses in their overall operation whilst at the same time publishing generally favourable reports on the operation of state-run National Probation Service regional areas who supervise those deemed a high risk of harm to the public. The Inspectorate’s reports have culminated in a damning inspection of the Dorset, Devon and Cornwall CRC in February 2019 (HMIP 2019a) run by the company Working Links which in the same week went into administration and its caseload was taken over by another private sector company. In the light of all these inspection reports, the Chief Inspector of Probation was moved to comment in her annual report published in March 2019 that ‘The probation model delivered by Transforming Rehabilitation is irredeemably fawed’ (HMIP 2019b: 3). It would be simplistic to lay the blame solely for this at the feet of Chris Grayling, the Conservative Justice Secretary who drove through the Transforming Rehabilitation

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strategy from 2012 to 2015. This major failure in protecting the public can be traced back to as early as 1988, when the then Tory Government made it clear that a mixed economy for probation was being envisaged with designs on reshaping the role of the voluntary criminal justice sector and enhancing the contribution of the private sector (Home Offce 1988: Part IV). We have argued elsewhere (Burke and Collett 2015: Chap 3), the drivers for change are complex, multi-dimensional, ever-changing and contradictory. Our view, however, is that the key context of the grand neoliberal enterprise – a combination of economic liberalism and social conservatism (certainly within the criminal justice system) – developed remorselessly over the past 40 years has had and continues to have a vice-like grip on the direction of the economy and the role of the state and thus, inevitably, on the more intricate operation of the criminal justice system (Bell 2011; Cole 2008: 85–90; Standing 2011; Whitehead and Crawshaw 2013). When Ken Clarke was replaced by Chris Grayling as Justice Secretary in September 2012 it was evident that the pace and ideological intent of the reforms would only intensify (see Deering and Feilzer 2019: 16). Legislation was required (in the form of the Offender Rehabilitation Act 2014) to extend supervision to all short-term prisoners and with indecent haste, Transforming Rehabilitation rolled forward. A perfect storm of massive cuts to the budget offered by Clarke to the Treasury (some 27% from 2010–2014/15) and an incoming Justice Secretary, Chris Grayling whose ‘ceaseless message . . . was to achieve the policy goal no matter the obstacles’ (Annison 2019: 49) created the conditions for the inevitable failure of Transforming Rehabilitation. Understandable concern has been expressed about the massive additional resources being put into shoring up the CRCs and the nature of supervision itself with the credibility of the CRCs being stretched as the public (as well as sentencers) read about biometric reporting kiosks, monthly telephone reporting and meetings between supervisee and supervisor in coffee shops. The capacity of the civil servants to operate functional commissioning and contracting strategies, design Payment by Results (PbR) commissioning mechanisms and predict work volumes is one side of a coin that has on the other, private sector CRCs unable to innovate, engage the Voluntary and Community Sector (VCS) appropriately (HMIP 2018; Corcoran et al. 2019) and ultimately deliver what they were being paid to do. Perhaps, because it was implicit in the organisational bifurcation of the rehabilitative endeavour under Transforming Rehabilitation, the use of risk of harm measures to determine who would supervise what cases has, to some extent, slipped under the radar. In a highly perceptive piece of analysis on the rise of risk and the Risks-Needs-Responsivity (RNR) model within probation and its use within the recent reforms, Robinson (2016) reminds us that risk-based reasoning has increasingly affected the discourses, practices and organisation of probation work since the 1990s and that reducing risk alongside engaging meaningfully with those on supervision is a primary and now a relatively uncontested element of quality in supervision. However, more recently the risk of harm posed by individuals has shifted from the ethos to the architecture (2016: 43) as measures of risk have been used to determine which organisation,

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public or private, would supervise whom. In other words, Robinson argues that the institutionalisation of risk may pose signifcant operational problems for probation and create silos of populations not simply on the basis of their risk assessment but on the agency that supervises them – risk escalation or diminution, transfer across silos, staff skills, resource allocation, targets – all these issues become problematic. What goes to the core of probation and its legitimacy though is the recalibration of risk to deal with the resource shortfalls, fnancial penalties and lack of appropriately qualifed staff within the CRCs in order to hit other contractual targets. Since Robinson was speculating on the corrupting impact on institutionalising risk within the new arrangements, some evidence is emerging that her fears were well founded. In one of the most recent HMIP Inspection reports, the Chief Inspector, in refecting that there was simply not enough meaningful work being undertaken with individuals under supervision, added ‘instead, effort is focused disproportionately on reducing the risk of any further [contractual] fnancial penalty’ (HMIP 2019a: 4). The report identifes the CRC’s performance against a number of targets, which appear to be no worse than the other CRCs that have been inspected to date. However, when the profle of the caseload is analysed according to risk what becomes apparent is that the proportion of cases assessed as medium and low risk (53% and 44% respectively) is signifcantly lower than the average for all the CRCs that have been inspected (65% and 33% respectively) (HMIP 2019a: 11). The other source of evidence of the corrupting impact of institutionalising risk comes from what evidence can be gleaned about the commission of serious further offences (SFOs) by those individuals already subject to statutory supervision. From a Guardian Freedom of Information (FIO) request based on information which has still not been publicly released, SFOs have increased signifcantly since the implementation of Transforming Rehabilitation in 2015 and at 627 show a 21% increase from 517 in the previous 12-month period. Interestingly, although any probation practitioner would already know this, 43% of SFO were allegedly committed by CRC cases that are defned as low or medium risk (Grierson 2018: 8). These fgures point to not only the operational failure of the new arrangements but the stupidity of institutionalising risk in the way that Transforming Rehabilitation has done.

Undermining trust in the sentencing process It was clear from the outset that extra-judicial decisions regarding breach as well as the provision of advice to the courts would remain, indeed ‘must remain reserved to the public sector’ (Ministry of Justice 2012a: 3). This refects an understanding of the need to avoid perverse practices in pursuit of proft that may undermine the criminal justice system at its sharpest edge – decisions about punishment, rehabilitation and imprisonment. However, the way in which the risk of harm has moved from the ethos of the service to its architecture is particularly evident in court work and the provision of assessments, advice and opinion to judges and magistrates.

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On frst examination, maintaining responsibility for court work with the NPS may appear to be a sensible and pragmatic approach adopted within the Transforming Rehabilitation strategy. However, what it effectively introduces into the architecture of probation is not only a separation of those who can and those who cannot advise sentencers, but for the majority of cases sentenced to community orders or custody, it separates organisationally those who advise sentencers from those who carry out the sentence of the court. As will we outline, the new architecture is already having signifcant implications for the sentencing of individuals before the courts. Firstly, however, the implications of this separation go beyond operational issues and as Zedner (2018: 167) refects in What is Lost When Punishment is Privatised?, when discussing punishment certainly in the Anglo-American context, the focus tends to be on questions ‘of why we should punish, how much punishment can be justifed, and when or under what circumstances infiction of hard treatment is warranted. In so doing, we fail to ask who may punish’. Zedner argues that if the authority to criminalise lies solely with the state, then this has profound implications for the question of who has the authority to punish (2018: 167). Her argument is that the criminal law is constitutionally concerned with the protection of public goods and civil peace (that is, wider issues than the punishment of the individual) but it must also be ‘executed impartially, fairly and undistorted by illegitimate considerations’ (2018: 180). As the boundaries between mass supervision and mass imprisonment becomes blurred and our understanding of the nature and impact of supervision on individuals becomes more nuanced (see McNeill 2019: 110–112), the question of who delivers punishment becomes more pressing. As the proportion of those who have re-offended has fallen, while the average number of re-offences per individual has increased sharply (NAO 2019: Figure 1) and as we escalate the recycling of individuals between community supervision and a prison system in crisis, the question becomes critical. Zedner accepts that the consequentialist issues and costs arising (effectiveness, effciency, recidivism rates etc.) are important but secondary to the fundamental values integral to the relationship between criminalisation and punishment. We accept the principle of that argument but our focus here is on the consequences of privatisation from a policy and delivery perspective and in our estimation, the consequentialist impact on the operation of probation and its relationship with the courts has been nothing less than disastrous since the implementation of Transforming Rehabilitation. Despite probation’s origins within the court systems of England, Wales and Scotland where its staff have historically been referred to as offcers of the court, relationships between the judiciary and magistracy have often been tense and open to misunderstanding. Notwithstanding this, our joint practice and management experience can also refect on sustained harmonious relationships in courts that worked to reduce rates of custody and the appropriate use of supervision to support individuals in their journeys towards a crime-free life. Again, in our experience, sentencer confdence in the capacity of probation to provide both accurate and realistic assessments of the individual before the court and similar confdence in the delivery of demanding supervision along the lines expected by the sentencers

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have been key to effective working relations. However, Transforming Rehabilitation has made that immeasurably more diffcult. Indeed, when the loss of confdence in probation being expressed and experienced by sentencers is coupled with the pressures for speed and effciency imposed on the overall judicial process via wider governmental initiatives (Ministry of Justice 2012b; Robinson 2017: 340–342) coupled with reductions in access to legal aid and local justice, there must be concern for the quality of sentencing. We can also add to the mix, a signifcant change in sentencing powers brought about by the Offender Rehabilitation Act 2014 which replaced the supervision requirement of a community sentence by a broader-based Rehabilitation Activity Requirement (RAR), a requirement which in the words of Her Majesty’s Chief Inspector of Probation ‘liberate probation services, enabling them to decide the best way in which to rehabilitate each individual’ (2017a: 4). The same act also introduced compulsory supervision upon release for all prisoners who were sentenced to less than 12 months’ imprisonment with the effect that sentencers are now increasingly embroiled in dealing with those who break the conditions of their supervision (but not licence). Both changes, central to Transforming Rehabilitation, have been introduced during a period of sustained high levels of incarceration where individual prisons are regularly reported as being in a state of crisis. At the same time, the paucity of community resources under the government’s austerity programme to support ex-prisoners and those subject to community supervision must affect sentencers’ confdence in the ability to deliver effective rehabilitation. This is neatly summarised in the view of the Director of Policy and Research for the Magistrates’ Association: The lack of confidence that sentencers have in CRCs relates to a number of issues: firstly a lack of information about what CRCs offer as part of community sentences (especially Rehabilitation Activity Requirements. . . .); Secondly, a lack of availability of services for certain cohorts, including women, and people with mental health problems; and thirdly, a lack of confidence in the robustness with which community sentences are managed. For sentencers to have confidence in community orders, they need to know that they will address for purposes of sentencing: any lack of confidence could have an impact on sentencing decisions. (Easton 2019: 34) In their most recent inspection of The Work of Probation Services in Courts (HMIP 2017b) whilst the National Probation Service was praised for its capacity to hit the targets for the speedy delivery of both oral and short format court reports, the inspectors nevertheless ‘found oral reports suffcient for the purposes of sentencing and case allocation, but recognise that they can present problems for the safe and effective planning of the delivery of a community sentence’ (2017b: 23). However, the Inspection was less reassured by the mechanisms in place to provide sentencers with suffcient information and assurance about the work of the CRC. Sentencers’ confdence was undermined when limited information was available about the

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activities delivered as part of court orders supervised by the CRC and as one resident judge commented,‘nobody is trying to reassure us anymore’ (2017b: 16). One particular observation, though, highlights the potential architectural impact on the quality not just of the information received by the court but the continuing impact on the quality of supervision: Work undertaken at pace to advise the court for the purposes of sentencing is unlikely to cover the background, motivation and complex needs of an individual engaged in community supervision. When it does not, the receiving service provider – in most cases a CRC – picks up responsibility for the comprehensive assessments of newly allocated cases, in order to develop a meaningful sentence plan. Yet CRCs are currently measured on the completion of an initial sentence plan, not the task or quality of any initial assessment. (HMIP 2017b: 29) This represents a perfect example of where the pursuit of proft and the effective supervision of individuals stand, if not in opposition, then certainly in potential confict. In the damning HMIP report on Dorset, Devon and Cornwall CRC (HMIP 2019a), a picture is presented of an overwhelmed and under-resourced CRC where one manager reported that ‘In the frst 10 months of RAR groups, we had offered 25,000 RAR days but delivered only 278’ (2019a: 16) and the report itself commented that ‘The level of confdence of sentencers in work of the CRC is very low with one sentencer quoted as saying “we are not happy with the CRC for a variety of reasons: accredited programs do not start on time, and the enforcement of orders is poor; there is acceptance without rigour of non-compliance”’ (2019a: 16). On a more general level but through a detailed analysis of offcial statistics, the Centre for Justice Innovation (CJI) has recently argued that the 24% fall in the use of community sentences (including suspended sentence orders) over the last 10 years and a particularly worrying decline in the use of accredited programmes is linked to a fall in the number of pre-sentence reports produced. The NPS E3 National Operating Model (National Probation Service 2015: Chap 2) introduced targets for fast delivery of oral and written reports of 60% and 30% respectively and the remaining 10% for Standard Delivery (SDR) pre-sentence reports. Currently the SDR performance is below 5% and as the CJI refects, cases with PSRs are 10 times more likely to receive a community sentence and so ‘this does at least beg the question of whether all the information which would be relevant to sentencing is being presented in every case’ (CJI 2018a: 4). In its follow-up report, the CJI is clear that the relationship between courts and probation has been clearly affected by a range of reforms over the recent past but particularly the implementation of Transforming Rehabilitation. Problems generated by the split in provision between the NPS and CRCs are compounded by court timeliness targets which have hampered the ability of probation to deliver high-quality PSRs. From a sentencer perspective, there is concern about the lack of information provided by CRCs and specifcally the lack of transparency and

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understanding about the operation of the new RAR – ‘the structure of the RAR means that the content of community sentences is often opaque to NPS court staff and sentencers’ (2018b: 12). In a series of recent articles, Gwen Robinson has provided both an historic analysis of the role of probation in the courts as well as the policy and organisational context within which speed has become an important determinant of how information is provided to sentencers (Robinson 2017, 2018a, 2018b, 2019). What adds additional insights into the impact of Transforming Rehabilitation, however, is that this recent work also refects her broadly ethnographic work across two English Magistrates courts centres in 2017. What her work demonstrates is the effect of organisational structures largely imposed through Transforming Rehabilitation and the impact of wider criminal justice initiatives searching for speed and effciency. In Delivering McJustice (2018a), Robinson considers the McDonaldization of court work and the implications it may have for the way in which court workers provide information to courts. In essence, she argues that the creation of a new customer in the form of the CRC to which the majority of those sentenced to community sentences will be allocated has ushered in a new range of technologies to support decisionmaking for this purpose as well as to meet a range of other centrally determined targets. Consequently, management oversight has become light touch – ‘Rather, the behaviour of workers was controlled by the expectations of the courts, and by the target set by their own organizational structure and by NOMs, reinforced by the technological scaffolding around their practice’ (2018a: 11). One of Robinson’s concerns is that court teams do risk becoming increasingly isolated and dislocated from their wider probation family – ‘This of course is a consequence of the changes wrought by Transforming Rehabilitation, which have seen court teams become one of a number of fragments of what was once a unifed service’ (2018b: 331). Court-based practitioners are rapidly becoming out of touch with the field, such that the content of sentences and requirements they are recommending on a daily basis is becoming more and more obscure. At present, they are striving to ‘paper over the cracks’ created by TR, but in the longer term, important gaps in knowledge and understanding could undermine the legitimacy of court teams in the eyes of sentencers, and such a loss of confidence can be difficult to reverse. (Robinson 2018b: 331) The current Justice Secretary, David Gauke (2019), has recently made a pitch for effective, smart justice that tackles the problem of short-term sentences where approximately 50,000 individuals were sent to prison in 2017. Some 27% of all offending is committed by those who have served imprisonment of 12 months or less but it would seem politically and practically impossible to abolish such sentences when magistrates appear to be losing their confdence in the new arrangements under Transforming Rehabilitation to deliver credible community sentences.

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There is currently little research evidence or evaluation of the impact of the speedy delivery of PSRs on defendants before the courts and their subsequent supervision under community orders and as Robinson comments,‘The TJ reforms tend to construct defendants as grateful consumers of speedy justice; but, again, we do not currently have evidence to support this construction’ (2018a: 13). An alternative view, which seems more realistic, is that defendants before the courts feel they are treated with little respect or understanding of their situation and are increasingly presented to sentencers in an atomised and one-dimensional nature. The prison population stood at 82,632 on the last day of March 2019 and it seems to us that Transforming Rehabilitation, whatever it may represent in terms of an ideological victory to push privatisation into the very heart of judicial approaches, simply cannot deliver on wider rehabilitation and decarceration objectives. The whole approach works to alienate sentencers from the delivery of both punishment and rehabilitation and as we have argued elsewhere (Burke et al. 2019: Chap 4), the operation of the courts within a revised sentencing framework could quite realistically be reimagined to support both decarceration and the desistance journeys of individuals who appear before them. What we are left with following Transforming Rehabilitation is a system that will further alienate sentencers from the work of probation and as importantly, alienate those very judges and magistrates from the individuals who appear before them – this can be neither good for justice or for the communities that sentencers seek to protect.

The expression of altruism and the erosion of civil society In the context of England and Wales, successive policies attempting to reconfgure correctional services though market mechanisms from contestability (Carter 2003) to the partial privatisation of probation under Transforming Rehabilitation appear at frst glance even-handed in their support for both private and third-sector providers to challenge traditional public sector models. However, as Corcoran et al. (2019: 97) notes, after the election in 2010 of a coalition government which, ‘favoured state downsizing and fscal austerity, the language of partnership, state-voluntary sector “compacts” and parity of esteem gave way to an emphatically marketised, competitive and target-led approach’. Subsequently, as part of the Transforming Rehabilitation reforms, the voluntary sector was expected to take an increasingly central role as the direct provider of probation services. This has resulted in the adoption of a subcontracting model in which predominantly private sector organisations act as managing agents of supply chains of (mixed sector) subcontractors. Unlike private sector companies, voluntary sector organisations, however, have less opportunity to raise the required capital by borrowing from banks or investors and have fewer cash reserves or assets which they could use to demonstrate their capacity to absorb risk. This is particularly pertinent in commissioning models based on Payment by Results (PbR) as suffcient working capital and resources are needed to take on the risk of a contract in which payment is weighted towards the end of the contractual period. This has created an environment of winners and losers within the voluntary sector

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which according to Corcoran et al. (2019: 110) has produced a rupture, ‘between those which maintain strong local connectivity and local bases along with fexibility and innovativeness, and large institutionalised super charities supplementing or even replacing statutory services, while in turn acquiring corporate and bureaucratic trappings’. Half of the privatised Probation Service contracts following Transforming Rehabilitation in England and Wales were subsequently awarded to just two preferred bidders – Interserve and Sodexo. Neither of these companies had an established record of delivering rehabilitative services and their expertise lay in the provision of a range of other services that have been outsourced through recent government contracting out activity. The scale and nature of outsourcing in England and Wales means that the market for delivering public services is inevitably dominated by giant conglomerates with similar business models that are heavily dependent on securing public contract revenues. They rely on winning new contracts by undercutting their competitors and an unrelenting growth strategy accelerated through acquisition. This creates a complex web of corporate governance that lacks transparency and undermines accountability (Burke and O’Doherty 2019). Without the state, as Myers and Goddard note, the coercion inherent to privatised criminal justice and crime prevention practices would lack legitimacy (2018: 168). The challenge facing private companies in entering this transformed public sector delivery landscape is therefore two-fold. Firstly, they need to establish their credentials and secondly, they need to consolidate their position. Fitzgibbon and Lea (2018) identify two stages in the development of private sector legitimacy in relation to the state. In the frst instance, companies try to get as close as possible to the state by effciently delivering the outsourced requirements and sheltering in the shadow of the state’s own legitimacy. As we have noted elsewhere,‘The message here is one of business as usual, with an emphasis on the maintenance of professional standards but with an added dash of innovation and effciency’ (Burke et al. 2019: 138). The second stage aims to establish the private sector as a legitimate provider of coercive services in its own right,‘establishing the corporation as responsible “citizen” through the promotion of the corporation’s own values and standards’ (Fitzgibbon and Lea 2018: 555). For example, the two largest CRC contractors, Sodexo and Interserve, respectively promote themselves as a world leader in Quality of Life services and helping to create improved and better environments where people can live and work. Stressing their public interest credentials in this way serves to defect criticism that the ultimate aim is proft maximisation to meet the interests of shareholders. By aligning themselves with the voluntary sector’s rehabilitative and charitable credentials the private sector (and by default the state as the commissioner of services) is therefore able to present themselves as a supporter of social goods aimed at helping rather than profting from the offender. Increased effciency and fnancial rewards are thus elevated to being an act of public service or ‘virtuous profts’ (Armstrong 2002; Myers and Goddard 2018). Over time a lock-in effect occurs whereby these companies become essential to the functioning of the state and become ‘too big to fail’ (Fitzgibbon and Lea 2018:

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554, see also White 2016). Lock-in not only enhances the power of the private sector but also changes the character of the outsourcing agent itself. As Hucklesby and Lister (2018) argue, rather than being a rational consumer who is able to select from a range of providers, the scale and type of contract means that in reality the state is left with little choice. Allied to this, over time the state’s capacity to resume control of the services it has outsourced (even if it desires to do so) is gradually diminished, ‘even in the face of major demonstrations of incompetence and suspected corruption’ (Fitzgibbon and Lea 2018: 553). This, in turn, further embeds the symbiotic relationship between private corporations and the state as ‘claims to rightful authority by private corporations become commonplace’ (Fitzgibbon and Lea 2018: 558). It also has had a negative impact on the voluntary sector who have been one of the biggest losers in the Transforming Rehabilitation reforms. After the organisational bifurcation that followed in the wake of the Transforming Rehabilitation reforms (Burke and Collett 2016), the NPS was not resourced to subcontract directly with voluntary sector providers and several charities reported that they were cut adrift from their statutory sector partners. In the process, they lost sources of referral, professional and interpersonal contacts and their place in local criminal justice networks (Corcoran et al. 2019: 105). A report by Clinks (the umbrella body for the voluntary and community sector in criminal justice in England and Wales) concluded that voluntary sector involvement in Transforming Rehabilitation was also undermined by funding cuts, a lack of transparency and a lack of clarity regarding what services would be funded by commissioners under the new arrangements (Clinks 2015). Even though the contracts are now in their ffth year, it has been claimed that market is still immature, and the desire for greater third-sector involvement in probation remains little more than an aspiration and because of lower-than-expected income from the contracts, many services have been largely curtailed or abandoned (HMIP 2018). At present, only two larger VSOs are partners to CRCs and one CRC is owned by a consortia of voluntary, private and public organisations, and as at October 2018, just 11% (159) of the 1,433 VSOs working in the criminal justice sector were providing services directly to CRCs (NAO 2019). Furthermore, smaller VSOs, which have a long history of providing specialist services, particularly for female offenders, are now less likely to be funded by CRCs than larger VSOs. As a result, many VSOs have been placed in fnancially unsustainable positions as they have had to draw on their own fnances and other funding to maintain services (NAO 219: 18). In its thematic inspection of probation supply chains, the HMIP report concluded that ‘the future looks bleak for some’ (2018: 5). The scale of the challenges of delivering rehabilitative services under Transforming Rehabilitation has, perhaps, been even greater than envisaged by those private sector companies who have found it extremely diffcult to reconfgure and reengineer probation to their operational models. As Glenys Stacey, in her fnal report as Chief Inspector of Probation noted, ‘Experience has shown that it is incredibly diffcult, if not impossible, to reduce the probation service to a set of contractual requirements and measures, and equally diffcult to deliver probation well without

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a nationwide approach to the essential underpinnings of the service’ (HMIP 2019b: 17). Moreover, Hansen Lofstrand et al. (2015) contend that the more the private security industry assumes public functions the more it runs the risk of becoming embroiled in the moral dilemmas and legitimation struggles characteristic of public sector service delivery. These cannot simply be resolved through an economic logic of effciency, cost cutting and proft seeking. This is because market-based behaviours cannot supplant the ‘moral tensions, trade-offs and conficts, and the attendant social struggles over meaning’ (Hansen Lofstrand et al. 2015: 14) that the exercise of legally legitimated authority in delivering public services inescapably entails.

Undermining occupational culture and professional ethics The exercise of legally legitimated authority allows one citizen to exercise highly unusual forms of power over another. Such work must, therefore, be conducted within a framework of professional ethics and standards and within a system of both criminal justice and legal rights and responsibilities. As such, the moral performance of practitioners is implicitly linked to both the legitimacy of the organisation and its effectiveness, then this raises profound questions regarding the legitimacy of outsourcing rehabilitative services. Indeed, legitimacy is not simply a refection of the values that establish the moral basis of probation practice, it is also refective of the effectiveness of the organisation. In this sense, values, moral purpose and outcomes are all related components of the legitimacy of an organisation as we highlighted in the introduction (Pease 1999). This is because probation staff (and systems) need to model the values and virtues they want supervisees to adopt. If they do not, and if the wider system lacks legitimacy in the eyes of supervisees, then it loses the right to infuence and persuade. Implied in our perspective is the notion that legitimacy can only be established with reference to the external world, particularly in such contentious areas as punishment and rehabilitation. This is because ‘legitimacy is best understood as a social process: a product of evaluations of social audiences or constituencies which may bring different norms, values and expectations to bear on their judgements’ (Robinson et al. 2017: 138). We have already highlighted the impact of Transforming Rehabilitation on both working practices and the role of staff within the court process and there is further research which provides a particularly instructive insight into the impact of privatisation upon occupational cultures. In their study of the impact of the Transforming Rehabilitation reforms on the occupational culture of probation, Robinson et al. (2016) for example identifed that staff were experiencing loss on a range of different levels as they migrated into the newly created CRCs. These, they conceptualised, as the physical loss of former colleagues to the NPS (felt to be exacerbated by structural impediments to communication across the interface between the two organisations) and/or the loss of human capital through voluntary redundancies. There were also perceived losses connected with the separation from the public sector which was seen by many to threaten both a probation ethos and the authority and legitimacy of the new CRC. They also noted a powerful theme of loss in relation

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to the local identity of the former organisation as one Probation Service Offcer (PSO) refected: I think the greatest sense of loss is identity, I think there is an identity crisis between the two, in terms of the CRC versus the NPS. The whole idea of a probation organisation I think has been lost. I think the professional loss is seeping around everywhere, that you know, one appears to have the more professional tasks and one doesn’t. I think the loss of pride that we were always a pretty good Trust. (Robinson et al. 2016: 166) Such feelings are perhaps, to a lesser or greater extent, understandable given the scale of the organisational change involved and one might reasonably assume that over time they would dissipate as existing staff either adjust to the new ways of working or leave the organisation and are replaced by new entrants who do not have the organisational memory of the previous arrangements. However, some fve years on, the Chief Inspector of Probation has highlighted that despite the increasingly demanding nature of the work, probation as a profession has been damaged ‘and the skilled work that professionals can deliver has been devalued’ (HMIP 2019b: 92). There is currently a national shortage of professional probation staff, especially those mainly responsible for more complex and demanding casework (probation offcers) and many of those leaving the service have left the profession itself. This has resulted in an unplanned role drift in responsibilities, with Probation Services Offcers (PSOs) taking on cases that would formerly have been supervised by a probation offcer grade, in large part in response to resource pressures (HMIP 2019b: 12). High workloads and the overriding need to meet transaction-based performance targets have led to professional standards being compromised and in what has been a series of damning reports, HMI Probation reported that professional ethics had been compromised, and ‘immutable lines crossed because of commercial pressures’ (HMIP 2019a). In addition, there is some evidence that deepening cuts, precarious working environments and increasingly unmanageable caseloads amount to ‘a pervasive form of systemic workplace harm, resulting in mental health issues, stress, and professional dissatisfaction’ (Walker et al. 2019: 113). Moreover, the authors go on to claim that this ‘is symptomatic and refective of a deeper underlying cause: namely, the proft motive that underpins the privatisation of public service work’ (Walker et al. 2019: 116). In this respect the Transforming Rehabilitation reforms can be seen as ‘the byproduct of the consistent procession of neoliberal policies which, over several years, had paved the way for its introduction’ (Walker et al. 2019: 119).

Conclusion: transferring costs on to the most vulnerable We have chosen to focus on the consequentialist and collateral implications of the part-privatisation of probation but from the stance of considering the rehabilitative endeavour and probation work to be ultimately moral in character – in

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the sense that rehabilitative activity involves building meaningful relationships with those under their supervision, encouraging alternative and creative thinking and strategies for individual change and using legitimated authority to help individuals on their journeys out of crime and ultimately to a new non-criminal identity within their families and communities. It also involves developing noncompetitive relationships with a range of community providers and resources to support those journeys. However, as Robinson et al. note, this has become more diffcult in the wake of the Transforming Rehabilitation as the ‘moral obligation to help improve offenders’ lives which has animated probation throughout its history is now sharpened by a new instrumental imperative to deliver profts for shareholders’ (2017: 16). Has Transforming Rehabilitation been a failure then? In a special edition of the Probation Journal to mark fve years since the publication of the Transforming Rehabilitation reforms, Harry Annison asked the question – ‘Does TR qualify as a “policy disaster”?’ (Annison 2019: 45). Viewed through the lens of its offcial rationales (increased innovation and effciency, improved resettlement outcomes, reduced reoffending etc.), then it would be hard to answer other than in the affrmative. Defned within its own terms, then, it has failed. However, it can simultaneously be argued that it has been a success. Indeed, as Anne Worrall (2020) has pointed out, if the game is ‘quick profts for shareholders at the expense of taxpayers, dismantling of troublesome professions, control of the underclasses, hollowing out of the State’, then perhaps it has not been a failure or policy disaster after all? In this chapter, we have attempted to illustrate that the damage caused by the Transforming Rehabilitation reforms are not limited to performance outcomes (as detrimental as these are) but as part of a comprehensive neoliberal mindset applied to the criminal justice system (but refected in wider austerity policies) it has reduced the capacity to protect the public, undermined trust in sentencing, fundamentally weakened supportive elements of civil society and diminished professional occupational cultures. Rather than a transformational policy of rehabilitation, the Transforming Rehabilitation strategy is in danger of reducing work with those who offend to a set of time-measured, technologically bounded transactional behaviors that alienate and distance those caught up in the criminal justice system as well as those working within it. As McNeill has put it: When we seek to sell off mutual obligations to one another, we weaken the moral bonds between us, because we treat as merely instrumental things that are in fact constitutive of ‘the good society’. Rehabilitation is one such good; it is a duty that citizens owe to one another. Those that offend owe it to that who have not offended. Those who punish also owe it to those that they have punished. Is it desirable that we seek to meet these obligations merely by paying others to do it for us? My view is that rehabilitation is best thought of as being everyone’s concern and no-one’s business. Transforming Rehabilitation risks turning it in some people’s business and no-one’s concern. (McNeill 2013: 85)

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As we have argued elsewhere (Burke et al. 2019), crimes that are processed through the criminal justice system are mainly the crimes of the poor. This is not an accident; the power of criminal justice is often deployed (and restrained) to protect the interests of the powerful. Criminal in/justice is thus inescapably linked with social and economic in/justice and any discussion of working with people who have offended must be located within a discussion of inequality in all its forms. As if to add insult to injury, the combination of austerity measures, a simplistic effciency-based approach to justice and Transforming Rehabilitation1 have combined to ensure that those most in need now have less personal, material and fnancial help to change their lives – little wonder the worlds of mass supervision and mass incarceration now coalesce for an increasing number of individuals recycled through the system. Such policies ultimately seek to replace altruism and notions of a gift relationship (other than in the context of food banks and other worthy initiatives) with transactional ones based on the promotion of proft maximisation. In doing so, the transformative potential of probation is diminished and it is the likes of Thomas Barrett, and the communities in which they reside, who ultimately pay the price.

Note 1 In May 2019, following a consultation exercise (Strengthening Probation, Building Confidence) and in response to the comprehensive criticisms of the Transforming Rehabilitation strategy, the government announced that the management of all individuals subject to community supervision or post-release supervision would be undertaken by the National Probation Service. However, most interventions would be subject to contracting out to the private sector. In other words, probation services would continue to be significantly privatised.

Bibliography Annison, H. (2019) Transforming rehabilitation as ‘policy disaster’: Unbalanced policymaking and probation reform, Probation Journal, 66(1): 43–59. Armstrong, S. (2002) Punishing not-for-proft: Implications of nonproft privatization in juvenile punishment, Punishment and Society, 4(3): 345–368. Bean, P. (2019) Probation and Privatisation, Abingdon: Routledge. Bell, E. (2011) Criminal Justice and Neoliberalism, London: Palgrave Macmillan. Burke, L. and Collett, S. (2015) Delivering Rehabilitation – The Politics, Governance and Control of Probation, Abingdon: Routledge. Burke, L. and Collett, S. (2016) Transforming rehabilitation: Organizational bifurcation and the end of probation as we knew it? Probation Journal, 63(2): 120–135. Burke, L., Collett, S. and McNeill, F. (2019) Reimagining Rehabilitation: Beyond the Individual, Abingdon: Routledge. Burke, L. and O’Doherty, B. (2019) A house of cards – The failure of outsourcing, Napo Magazine, February 2019. Carter, P. (2003) Managing Offenders, Reducing Crime – A New Approach, London: Home Offce. Centre for Justice Innovation (2018a) The Changing Use of Pre-sentence Reports, available at http: //justiceinnovation.org/portfolio/changing-use-pre-sentence-reports/ (accessed on 12th February 2018). Centre for Justice Innovation (2018b) Renewing Trust: How We Can Improve the Relationship between Probation and the Courts, available at http://justiceinnovation.org/portfolio/

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renewing-trust-can-improve-relationship-probation-courts/ (accessed on 17th Match 2019). CLINKS (2015) Early Doors: The Voluntary Sector’s Role in Transforming Rehabilitation, London: CLINKS, available at www.clinks.org/trackTR (accessed 29th February 2016). Cole, M. (2008) Marxism and Educational Theory – Origins and Issues, Abingdon: Routledge. Corcoran, M., Maguire, M. and Williams, K. (2019) Alice in Wonderland: Voluntary sector organisations’ experiences of transforming rehabilitation, Probation Journal, 66(1): 96–112. Deering, J. and Feilzer, M. (2019) Hollowing out? The roots of transforming rehabilitation, Probation Journal, 66(1): 8–24. Easton, J. (2019) Ensuring effective use of community sentences, Probation Quarterly, Probation Institute, available at http://probation-institute.org/wp-content/uploads/2019/03/ PQ11.pdf (accessed on 20th March 2019). Fitzgibbon, W. and Lea, J. (2018) Privatisation and coercion: The question of legitimacy. Theoretical Criminology, 22(4): 545–562. Gambino, L. (2014) Thrown into jail for being poor: The booming for- proft probation industry, The Guardian, available at www.theguardian.com/money/2014/mar/02/poorfor-proft-probation-prison-georgia (accessed on 19th April 2019). Gauke, D. (2019) Speech: Beyond Prison, Redefning Punishment, 18th February, available at www.gov.uk/government/speeches/beyond-prison-redefining-punishment-davidgauke-speech (accessed on 20th February 2019). Grierson, J. (2018) Numbers of supervised offenders charged with violent crimes rises by 21%, The Guardian, 14th October, available at www.theguardian.com/society/2018/ oct/14/number-supervised-offenders-accused-violent-crimes-rises-england-wales (accessed on15th April 2019). Hansen Lofstrand, C., Loftus, B. and Loader, I. (2015) Doing ‘dirty work’: Stigma and esteem in the private security industry, European Journal of Criminology, 13(3): 297–314. HMIP (2017a) Thematic Inspection: The implementation and Delivery of Rehabilitation Activity Requirements, Manchester: HMIP (February). HMIP (2017b) The Work of Probation Services in Courts, Manchester: HMIP (June) HMIP (2018) Probation Supply Chains: A Thematic Inspection, Manchester: HMIP (April). HMIP (2019a) An Inspection of Dorset, Devon and Cornwall Community Rehabilitation Company, Manchester: HMIP (February). HMIP (2019b) Report of the Chief Inspector, Manchester: HMIP (March). Home Offce (1988) Punishment, Custody and The Community, London: HMSO. House of Commons Justice Committee (2018) Transforming Rehabilitation: Ninth Report of Session 2017–2019, HC 482, 22nd June. House of Commons Public Accounts Committee (2019) Oral Evidence: Transforming Rehabilitation: Progress Review, HC 1747, 13th March 2019, available at www.parliament.uk/ business/committees/committees-a-z/commons-select/public-accounts-committee/ inquiries/parliament-2017/inquiry4/ (accessed on 10th April 2019). Hucklesby, A. and Lister, S. (2018) The Private Sector and Criminal Justice, London: Palgrave Macmillan. Hutton, W. (2019) At last we are turning away from our mania for hiving off public services, The Observer, 3rd March. McNeill, F. (2013) Transforming rehabilitation: Evidence, values and ideology, British Journal of Community Justice, 11(2–3): 83–85. McNeill, F. (2019) Pervasive Punishment: Making Sense of Mass Supervision, Bingley: Emerald Publishing. Ministry of Justice (2010) Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, London: Stationary Offce.

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Ministry of Justice (2012a) Punishment and Reform: Effective Probation Services, London: Stationary Offce. Ministry of Justice (2012b) Swift and Sure Justice: The Government’s Plans for the Reform of the Criminal Justice System, London: Ministry of Justice. Ministry of Justice (2013a) Transforming Rehabilitation: A Revolution in the Way we Manage Offenders, London: Stationary Offce. Ministry of Justice (2013b) Transforming Rehabilitation: A Strategy for Reform, London: Stationary Offce. Mukta, P. (2011) The gift relationship, British Medical Journal, 342. (Published 6th April). Myers, R.R. and Goddard, T. (2018) Virtuous profts: Pay for success arrangements and the future of recidivism reduction. Punishment & Society, 20(12): 155–173. National Audit Offce (2014) Probation: Landscape Review, Report by the Comptroller and Auditor General, HC 1100 Session 2013–2014, 5th March. National Audit Offce (2016) Transforming Rehabilitation, Report by the Comptroller and Auditor General, HC 951 Session 2015–2016, 28th April. National Audit Offce (2017) Investigation into Changes to Community Rehabilitation Company Contracts, Report by the Comptroller and Auditor General, HC 676 Session 2017–2019, 19th December 2017. National Audit Offce (2019) Transforming Rehabilitation: Progress Review, Report by the Comptroller and Auditor General, HC 1986 Session 2017–2019, 1st March. National Probation Service (2015) NPS Operating Model Version 1.0, London: NPS, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachmentdata/fle/555747/NPS-Operating-Model.pdf (accessed on 23rd December 2018). Pease, K. (1999) The probation career of Al Truism, The Howard Journal of Criminal Justice, 38(1): 2–16. Robinson, G. (2016) Patrolling the borders of risk: The new bifurcation of probation services in England & Wales, in Bosworth, M., Hoyle, C. and Zedner, L. (eds) Changing Contours of Criminal Justice: Research, Politics and Policy, Oxford: Oxford University Press, 42–54. Robinson, G. (2017) Stand-down and deliver: Pre-sentence reports, quality and the new culture of speed, Probation Journal, 64(4): 337–353. Robinson, G. (2018a) Delivering McJustice? The probation factory at the magistrates’ court, Criminology & Criminal Justice, available at https://journals.sagepub.com/doi/ full/10.1177/1748895818786997 (accessed 15th February 2019). Robinson, G. (2018b) Transforming probation services in Magistrates’ courts, Probation Journal, 65(3): 316–334. Robinson, G. (2019) Probation practice in a velvet cage? Specialist court work after probation privatisation in England and Wales, Punishment & Society, available at https://journals. sagepub.com/ doi/ pdf/10.1177/1462474519828695 (accessed on 17th April 2019). Robinson, G., Burke, L. and Millings, M. (2016) Criminal justice identities in transition: The case of deveolved probation in England and Wales, British Journal of Criminology, 56: 161–178. Robinson, G., Burke, L. and Milling, M. (2017) Probation, privatisation and legitimacy. The Howard Journal of Crime and Justice, 56(2): 137–157. Standing, G. (2011) The Precariat – The New Dangerous Class, London: Bloomsbury. Strickland, P. (2016) House of Commons Library Briefng Paper Number 06894: Contracting Out Probation Services 2013–2016, 22 January, London: House of Commons. Titmuss, R. (1970) The Gift Relationship – From Human Blood to Social Policy, London: George Allen & Unwin. Toynbee, P. and Walker, D. (2017) Enemies of the state: The 40-year Tory project to Shrink public services, The Guardian, 9th May.

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Walker, S., Annison, J. and Beckett, S. (2019) Transforming rehabilitation: The impact of austerity and privatisation on day-to-day cultures and working practices in ‘probation’, Probation Journal, 66(1): 113–130. White, A. (2016) Shadow State: Inside the Secret Companies that Run Britain, Edinburgh: Oneworld Book. Whitehead, P. and Crashaw, P. (2013) Shaking the foundation – On the moral economy of criminal justice, British Journal of Criminology, 53(4): 588–604. Worrall, A. (2020) The other prices of privatised justice: Marketing prison alternatives, in Carlen, P. and Franca, L.A. (eds) Justice Alternatives, Abingdon: Routledge, 290–305. Zedner, L. (2018) What is lost when punishment is privatised?, in Daems, T. and Vander Beken, T. (eds) Privatising Punishment in Europe? Abingdon: Routledge, 167–186.

6 THROUGH THE GATE John Harding

You never really understand a person until you consider things from his point of view, until you climb into his skull and walk around it. Harper Lee – To Kill a Mockingbird Nowadays the rage for possession has got to such a point that there is nothing in the realm of nature, whether sacred or profane, out of which proft cannot be squeezed. Erasmus Is there some deep-seated loathing in the British psyche which might explain it, some masochistic enjoyment of the destruction of institutions which worked because they were based on principles of public service and communal values? John Naughton ( The Observer, 1993)

Introduction The foregoing quotations may form a starting point to understand the rise and fall of Christopher Grayling’s Transforming Rehabilitation (TR), implementation and, more particularly, his Through the Gate policy and practice. Thousands of offenders each year serving less than 12 months are released from prison sentences, with a period of supervision, overseen by Community Rehabilitation Companies (CRC) or some contracted company commissioned by them. We know from research studies, the Probation Inspectorate Reports and, indeed, the House of Commons Justice Committee Reports, that those serving less than 12 months’ imprisonment represent the neediest, the most vulnerable, the least educated and the most convicted of men and women in the world of prison. In addition, they have a disproportionately high level of needs including drug and alcohol misuse, mental health issues and high levels of homelessness on release from sentence. The poet, U. A. Fanthorpe, once described such dispossessed ‘as people at the edge of things’.1

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As the Harper Lee quotation reminds us it is important, beyond the research fndings, to listen to prisoners’ stories and hear the accounts of the sometimes uncomfortable mess of their lives, with their aspirations for a settled and meaningful life not much different to ourselves. The Dutch mediaeval scholar Erasmus’s comment on proft has a strikingly contemporary echo. Finally, The Observer critic, John Naughton’s, quote in 1993 on the growing scale of privatisation in the public sector is still fresh when considering Grayling’s ideological decision in 2014 to split the Probation Service into the National Probation Service (NPS) and the 21 CRCs, the majority of whom were private companies with little or no experience in managing and supervising offenders on release from prison or under some form of community supervision. In order to understand how Through the Gate (TTG) works, a series of interviews were arranged in 2018/2019, with key stakeholders from the Ministry of Justice, the Prison Reform Trust, some CRCs and some provider services commissioned by the CRCs; small charitable agencies that had face-to-face contact with offenders on release and, of course, the service users themselves. Some were short-term prisoners supervised by the CRC and a few were long-term prisoners supervised on release by the NPS. What follows is a portrait of the willing and the unwilling who were prepared to share their Through the Gate practice. Despite exhaustive requests to Interserve, otherwise known as Purple Futures, and Sodexo, who between them represent half the contracts awarded by the Ministry of Justice, they did not respond to requests for interviews. The question is therefore why such companies did not wish to share three years of experience of TR with the author. Purple Futures won fve of the 21 probation contracts. It is in partnership with Interserve who is responsible for overall service delivery. Interserve incurred reputational damage in 2009 when it was fned £11.6 million by the Offce of Fair Trading for operating a building scam with construction companies.2 Reports in 2018 suggested that Interserve was ‘teetering on the edge of a Carillion style collapse and is looking for further staff cuts to try and survive’. Private Eye calculations, through looking at company reports, show that Interserve had already cut staff in its fve probation services by 33% since the start of Transforming Rehabilitation in 2015. Its problems were further confounded in February 2019 when shareholders in Interserve faced a near wipe-out after the embattled outsourcing company agreed on a rescue with creditors that saved the frm from becoming another Carillion. The company, which relies heavily on government contracts, said that the deal would reduce its debt from £600 million to £275 million in return for new shares.3 The Purple Futures CRC service in Hampshire and the Isle of Wight has a chief executive with 24 years’ previous service in Probation Trusts who refused to be interviewed. Its principal commissioned partner in the area, Catch 22, is responsible for Through the Gate services in local resettlement prisons. Catch 22 is a national social business charity which runs a range of programmes for offenders within the community and makes supervision arrangements for over 4,900 prisoners serving less than 12 months. Catch 22, a merger of Crime Concern and the

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Rainer Foundation, works with CRCs nationally in 23 prisons and is responsible for the assessment and resettlement plans of short-term prisoners. In a press statement, Catch 22 claimed that it has designed and delivered Through the Gate services in prisons with high engagement and results.4 Beyond the rhetoric, there is simply no evidence for these claims. The request for an interview was refused. Sodexo, the biggest player on the CRC scene with 6 of the 21 contracts in England and Wales, was also contacted. Sodexo is a French company in the catering and services sector with no previous experience of supervising offenders before taking on probation staff in 2015 as part of the Ministry of Justice contract awards. Like Purple Futures, it has cut staff by 45% since it took over services in 2015. It received a bailout in 2017 of £69 million when the government changed its performance payments terms as part of an overall settlement of £277 million to all the CRCs. Like many of the CRCs, Sodexo has not performed well, most notably in Essex in October 2017, when the Chief Inspector of Probation, Dame Glenys Stacey, gave a ‘required improvement’ rating. More than two thirds of the staff told inspectors that their workload was ‘unmanageable and dispiriting since many individuals under supervision are quickly relegated to telephone contact rather than face-to-face interviews with their probation worker’.5 As with Purple Futures, Sodexo, although it manages some prisons in England and Wales, had no experience prior to 2015 of probation or resettlement services. The refusal to be interviewed about their practice of Through the Gate begs a number of questions. Many of the chief executives and senior managers of the CRCs were former senior managers in Probation Trusts. There is no reason to suggest that such experienced and capable people lack the ability to talk about their operational successes and disappointments. Most of them would have been raised in a climate of expectation by Probation Committees and, latterly, Probation Trusts that, like their chief offcers, are accountable for their collective performance to the Probation Inspectorate, the National Audit Offce, researchers from universities and, indeed, the press and television companies. The author as a former chief probation offcer of a large service, Inner London, had almost daily requests from researchers and the press to see what the service was doing and to explain programmes of offending behaviour and provide reassurance that people coming out of prison, whether short or long termers, were subject to some form of supervision, if serving over 12 months, and in touch with partnership agencies that addressed the needs of offenders, through drug and alcohol treatment programmes, education and employment schemes and mental health services. What these observers or researchers may have seen or heard when confronted with the lives of offenders on release from prison may have been, at times, messy, uncomfortable or disturbing but they were real. Why is there a culture of silence and non-responsiveness from CRCs and some of their principal partners? Are they concerned about the possible loss of contracts when in 2020 Justice Secretary Gauke reduces the size of CRCs from 21 to 10? Do they just feel answerable to a boardroom of shareholding directors rather than the public at large? Ironically, at the end of the day, it is public taxpayer’s money that supports the CRC companies and their partners.

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Interviews aside, the other revelation in addressing Through the Gate is watching the gradual disintegration of Grayling’s Transforming Rehabilitation within a short timescale since the inaugural launch in September 2013 with the splitting of the Probation Service into both the NPS and the 21 CRCs in June 2014, followed by the new providers’ launch starting in February 2015. Admittedly, the launch and introduction of Transforming Rehabilitation was on shaky ground with little evidence base for the privatisation agenda. What followed was a swift turnover of secretaries of justice, almost unprecedented in modern times – Grayling, Truss, Gove, Livington and now Gauke. All of them were in unfamiliar territory and faced crises not of their own making with the exception of Grayling, who sliced the prison staffng budget, reduced legal aid to poor defendants, banned the sending of books to prisoners and inaugurated Transforming Rehabilitation without carrying out an assessment of costs or properly piloting models in relation to payment by results and the private/public split of probation services. The contrast in style and performance to previous home secretaries like Roy Jenkins or Douglas Hurd in the 1970s and 1980s who paved the way for carefully developed criminal justice legislation with Green and White Papers could not be more marked. As an example, the development of community service by offenders, now rebranded unpaid work, as an alternative to a shorter custodial sentence in the early 1970s passed through a number of stages from a Home Offce working party to the national roll-out three years later. Michael Moriarty, a senior civil servant in the Home Offce at the time, commented: ‘I stayed in post long enough to see the legislation passed, the pilot scheme started and the research on which the committee put much emphasis, in place. Its regular reinventing by successive governments has had its vexing side, but it can be seen as evidence of the durability of the concept.’6 Grayling recently admitted his reforms ‘had not worked as well as we would have wanted. Sometimes those in government just have to believe in something and do it.’7 Just over three years since the launch of TR, Justice Secretary Gauke issued a press release announcing changes in the probation model.8 The CRC contracts were to be cut short with an end date being brought forward from 2022 to 2020. CRCs would now be aligned with NPS areas making 10 English probation regions, and a new procurement exercise was to be enacted with the expectation that more voluntary sector organisations would be involved in delivering interventions – an ambition unrealised by the Transforming Rehabilitation exercise. Effectively, the CRCs would be cut back from 21 to 10 companies with presumably the worst performing CRCs losing future contracts. In Wales, a more radical approach was to be adopted with low- and medium-risk offenders being transferred to the NPS. Quite why the justice secretary chose to continue supporting CRCs, even in reduced form, remains a surprise especially when Prison and Probation Inspectorates reported on consistently failing CRCs, with a few notable exceptions, most registering poor performance and needing improvement as opposed to inspections of the NPS whose performance the Inspectorate rated as suffcient, improving or good. The judgement looked even shakier when the Ministry of

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Justice announced in February 2019 that Working Links, an employment and probation company, owned by German-based Aurelius, was entering into administration along with its operating company that delivered its probation contracts. Working Links managed three of England and Wales’ CRCs (Bristol, Gloucester and Somerset; Wiltshire, Devon, Dorset and Cornwall; and Wales). The writing had been on the wall for the company since November 2018 when the chief inspector of probation, Dame Glenys Stacey, reported performance failings at every level of operation. In the report, Stacey said that ‘the professional ethos of probation had buckled under the strain the commercial pressures put upon it and must be restored urgently’.9 Stacey also found evidence that magistrates and judges were unwilling to pass community-based sentences on a scale that made the companies proftable because of lack of confdence in the CRC where their fnancial pressures changed the way the companies handle defenders. Some higher-risk cases were not appropriately supervised for lack of resources. ‘The imperative to meet task related contract performance targets and so avoid fnancial penalties dominated professional life.’10 Working Links staff had been cut by one third since 2015. Some offcers had an average of between 80 to 100 cases – an unmanageable workload. Gauke resisted a trade union plea to bring back Working Links into public sector control and the contract for the next two years was handed to Seetec, a private company providing probation services in Kent, Surrey and Sussex. Notwithstanding the Working Links demise, Grayling suffered yet more criticism with the publication of the National Audit Offce review of TR probation reforms.11 Predictably, the NAO found that the Ministry of Justice rushed the rollout of reforms without suffcient testing. Ultimately this resulted in CRCs facing severe fnancial pressures which made them less willing to invest in failing services. Consequently, the Ministry of Justice had to exit the contracts 14 months earlier with extra costs to the taxpayer. Coupled with earlier failures to stabilise contracts, the taxpayer will pay at least £467 million more than budgeted for under existing contracts.12 In detail, the NAO provided some alarming statistics. There was an increase of 22% in the number of offences per CRC offender. Through the Gate hopes were further dashed by a fnding between January 2015 and September 2018 that offenders on short sentences as a percentage of prison recalls increased from 3% to 36%. Despite early TR expectations just 11% of voluntary organisations, linked to criminal justice, provided services to CRCs. In a telling summary, Amyas Morse, the outgoing head of NAO, warned that despite the latest proposals by Justice Secretary Gauke, whilst addressing some of the issues, risks remain, with limited time to procure new contracts. The Ministry, he suggested, should pause and refect whether the proposed approach is deliverable and consistent with the strategic aims for the probation system The NAO advocates a cross-government strategy that spells out how probation links with other bodies to reduce reoffending.13

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Putting things right Before the Working Links collapse, the under-performance of CRCs had been reported in detail in a series of Inspectorate Reports by Dame Glenys Stacey during the period 2016/2017. In particular, the Ministry of Justice pledged to put £22 million each year to improve Through the Gate support under existing CRC contracts for prisoners serving less than 12 months. The rapid turnabout in policy was strengthened by the report of the House of Commons Justice Committee who, having taken evidence from the Inspectorates, voluntary organisations, the NPS and CRC, criticised Through the Gate services for the approximately 40,000 offenders released from jail each year serving less than 12 months.14 Under the terms of TR, CRCs are required to: • • • • • •

Prepare resettlement plans within five working days of the screening being completed by prison staff. Help prisoners find accommodation. Help prisoners retain employment. Offer prisoners the opportunity to gain employment and obtain training before release. Help provide financial advice with benefits and debt. Undertake pre-release coordination.

Dame Glenys Stacey’s frst report on probation reform noted that there was ‘a two-tier fragmented system’ in which private companies were performing signifcantly worse than the public sector element. She added that unexpected changes in sentencing, severe fnancial stresses and cutbacks have undermined the abilities of private companies to bring innovative practice to probation and protect the public from harm.15 She also added ‘most CRC’s are struggling. Those owners’ ambitious to remodel services have found probation diffcult to reconfgure and re-engineer. Directing probation services is more diffcult than it appears particularly in prisons and rural areas.’16 She noted with concern that CRC is facing unanticipated changes in sentencing. Paradoxically, with the reduction in the use of community-based penalties, CRCs have reduced staff numbers to a worrying extent undermining a central tenet of effective probation work – a consistent, professional, trusting relationship between the individual and the probation worker.17 She observed that Through the Gate services to short-term prisoners were generally poor providing little help with housing, jobs, addictions and debt. About one in 10 people were released from prison without a roof over their heads. A year later, a Probation Inspection Report is no more encouraging. The executive summary highlights the cases of 98 prisoners before and after release. They came from nine prisons where Through the Gate services were delivered by eight different CRCs with seven different corporate owners. Prisoners needed sustained help before release with benefts, jobs, accommodation and help with addiction;

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many of their needs were not recognised when prisoners entered custody. When problems were picked up, they were not well recorded. Through The Gate staff did not have enough information to make a good release plan. If issues were identifed at the start of a sentence, prisoners could be speedily transferred to another prison without a plan in place. Most prisons did have some planning in place but the quality was variable. Many of the action plans consisted of no more than referring the prisoner to another service with little or no follow-up. Too many prisoners, more than one in seven, were released not knowing where they would sleep that night. The rate of homelessness varied from prison to prison but 10 of the overall cases the Inspectorate looked at, at the start of the licence period, had no fxed address. The impact of Through the Gate services and education, training and employment was minimal; few prisoners were helped to obtain education, training and employment after release. Work on fnance and benefts was not delivered to any great extent. Depressingly, 10 of the 98 prisoners surveyed had been charged with new offences and sent back to prison within 12 weeks of release. A further 11 had been returned to prison for breaking the terms of their licence.18 The picture of poor services to short-term prisoners portrayed by Dame Glenys Stacey is mirrored in a more contemporary account by Amy, an outreach worker for Footprints, a mentoring agency in Hampshire and Dorset. She said in an interview that most of the referrals from Catch 22 staff were last minute, often with little detail and no offence record. For prisoners serving less than 12 months it’s mostly too little, too late. CRC staff made an early assessment but there is little meaningful follow-up in terms of resettlement plans. There are far too many last-minute referrals. Within the final 12-week period a prisoner could be shipped out to another prison in his last two weeks even though he might be a Hampshire resident serving in Winchester prison. It’s so difficult to resettle offenders who are recalled to prison for as little as 28 days. It’s pointless, especially for those offenders with multiple needs, another revolving door issue.19 Jim is a 45-year-old with an alcohol problem who served nine months in Winchester prison for fraud. He was released on an electronic tag to his mother’s address. He is articulate and able and at the outset of his sentence made application for courses which might accelerate his chances of early release. I was very conscious of fellow offenders with poor literacy or numeracy skills to whom little attention was paid. They were invisible and never received the help they needed. I qualified for early release because of my mother’s address in Winchester; others were equally eligible but failed to qualify because of the absence of an address. I had no contact with the CRC Purple Futures probation officer before release but was told to report to Basingstoke when I came out. They closed down the old Winchester probation office so I had a 16 mile train journey to Basingstoke. On average, I spent no more than five

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minutes with the probation staff for each interview. Over the course of the supervision period I chalked up five different probation officers or probation service officers. A complete waste of time! When I did relapse into drink again I went to Inclusion, the local addictions treatment centre in Winchester, they were marvellously attentive. I’ve been dry for over a year and am in touch with my family, finding work and getting healthy again.20

Some responses by the Ministry of Justice following reports by the House of Commons Justice Committee and the Prison and Probation Inspectorates, 2018/2019 As already mentioned, the justice secretary’s decision to radically reshape TR was infuenced by the Probation Inspectorate fndings and the House of Commons Justice Committee reports; the committee fndings were, in turn, shaped by evidence from a range of experts across the criminal justice feld. Section 2 of the Offenders Rehabilitation Act 2014 subjects offenders, serving 12 months or less, to a period of 12 months’ supervision. Evidence from many NGOs, CRCs and, indeed Dame Glenys Stacey, suggested that the 12 months’ supervision was not suffciently fexible or appropriate. Peter Dawson, the CEO of the Prison Reform Trust and a distinguished ex-governor, in an interview said he had real reservations about the compulsory element of supervision under Through the Gate. ‘There’s an assumption that reoffending would decline, there is no evidence for this. What works is a meaningful relationship with the offender plus practical help. Threatening users does not help.’21 Dawson referred to a Prison Reform Trust small-scale survey of 24 women who had been recalled to custody; 11 of them had been recalled for failing to keep in touch with their probation offcer. ‘The threat of recall accentuated the fault lines in supervision relationships that were already fragile, inhibiting women from confding in their supervisors about their diffculties.’22 The House of Commons Justice Committee report questioned the fndings of the joint inspection on Through the Gate resettlement services for short-term prisoners saying ‘the CRC’s efforts were pedestrian at best’ and explained ‘in too many cases, resettlement planning consisted of no more than referrals to other agencies, recorded as complete once an email had been sent’.23 The report reached similar conclusions to the Joint Inspectorate’s, suggesting failures in resettlement planning and a lack of referrals to appropriate agencies to meet the needs of offenders on release. They also felt that the pre-release planning activity in prison at the 12-week point before release was too infexible and did not refect the varying, and often complex needs of offenders.24 Following the House of Commons report and the justice secretary’s intent to reform Through the Gate services, Fiona Radford, an experienced prison governor, was asked by the Ministry of Justice to put in place new arrangements for Through the Gate to improve resettlement planning by CRCs for those offenders serving

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less than 12 months. In an interview, she said the Ministry of Justice has allocated £27 million to CRCs to provide extra staffng in prisons either through their own staff or making contract arrangements with local NGOs. She said the extra money amounted to 550 staff in resettlement prisons to be in place by April 2019. Her section in the Ministry of Justice is tasked to ensure that CRCs put arrangements in place and comply with service delivery specifcations. The new resettlement arrangements proposed in prison would focus on graded interventions in terms of prisoners’ resettlement needs. I call them ‘extra complexities’. The ranking of need would vary in the resettlement plan, thus low level intervention might apply to someone with housing and job prospects and a high level intervention prior to release would be reserved for extremely complex cases where there were multiple needs such as mental health issues, addictions, housing, low levels of education and job skills.25 Under previous probation trust arrangements resettlement teams in prisons consisted of qualifed probation offcers and senior probation offcers seconded from a local service. When asked about staffng in relation to the 550 extra personnel already agreed and about their skills in relation to assessment and resettlement planning Ms Radford said: ‘Realistically most of the new intake would be at the Probation Service Offcer level – PSO – and a few would be well qualifed. It’s up to the CRC’s to provide adequate training for new roles and responsibilities and we shall look carefully at compliance issues.’26 She admitted that there were serious unresolved issues following the lack of a compatible computerised system between the CRCs and prison staff so that information could be accurately fed into resettlement plans. ‘It’s a major contemporary failing, work is going on within the Ministry of Justice to rectify the situation but there are no simple solutions.’27 Looking to 2020, with the prospect of 10 CRCs or less, will the Ministry of Justice put in place HMPPS directors in each region to ensure better communication and coterminosity between the CRCs and the NPS? She confrmed that these proposals were still under discussion in the Ministry of Justice.

Accommodation and housing The House of Commons report places particular emphasis on the importance of an offender fnding accommodation. After release from prison without an address such offenders may lack an insurance number, the ability to open a bank account and to claim benefts. The report noted that of prisoners serving 12 months or more 62% needed help with accommodation or were released from custody with no address. Of short-term prisoners serving less than 12 months over two thirds needed help with accommodation.28

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More precisely, the HMI Probation Annual Report for 2017 found that one in seven (14%) of short-term prisoners and one in 10 (10%) of long-term prisoners walked out of the prison gate not knowing where they were going to spend their frst night and only a small number found suitable accommodation on the day of release.29 The Guardian, using data obtained under Freedom of Information from the Ministry of Justice, showed a 25-fold increase between October 2016 to June 2018 in rough sleeping among those who had served sentences of less than six months in England and Wales. Overall, one quarter of short-sentence prisoners were released homeless, almost double the rate in October 2016. This increase has disproportionately affected women, with the number sleeping rough after prison rising by more than 50% in the last quarter. In the same article, Christine Marriot, the chief executive of the Revolving Doors agency, is quoted as saying ‘the signifcant numbers of people leaving prison without accommodation refects a failure of government reforms to probation. Promised support on release is not happening on the scale nor with the quantity needed to change lives.’30 In its defence, the recent government actions in the shape of a rough sleeping strategy and the extra £27 million investment in strengthening Through the Gate services are moves in the right direction. Of key importance too, is the Homeless Reduction Act 2018 which applies to local authorities in England. Section 10 of the act came into force in October 2018, placing a duty on public authorities including prison and probation services to refer (with consent) individuals they are working with who appear to be homeless or threatened with homelessness to the local authorities.31 In interviews with ex-prisoners, there was some evidence that local authorities are responding to the new act. Imran was released from custody in April 2018 on life licence having served 18 years after shooting a man in a Midlands city. From a Cat D prison at Spring Hill, his Midlands-based probation offcer from NPS transferred his licence to her counterpart in Bournemouth. In addition, Imran was allocated a mentor from the Footprints agency. My probation officer referred me to the local housing department and I also received skilled help from Shelter. I spent the first three months in a hostel and I’ve been allocated this one-bedroom flat with a tenancy agreement by the local authority. I know where I stand and I could not have had a better start with the help of the local authority in Bournemouth, my mentor and NPS probation officer.32 Declan is another middle-aged man on life licence who served 15 years in prison for attempted murder. He has the same Footprints mentor as Imran. Like Imran, he benefted from the preparation for resettlement work at Spring Hill Prison taking up to 10 short-stay visits to a probation hostel in Southampton. He was released a year ago to the hostel and has now been placed in single-person accommodation by the local authority in Southampton. He has been employed as a builder’s labourer

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throughout the period of licence. Both Imran and Declan feel they have benefted from the NPS probation offcers who have provided a stable framework of support on release, pressed their cases with the local housing department and enjoyed the attention of a mentor who helps them plan aspects of their future lives.33 Kylie’s life, by comparison to the lifers, has been, until now, predictably chaotic. She had a 20-year drug addiction path: heroin, cocaine and alcohol abuse, numerous convictions, probation, prison hospitalisation and attempted suicides. She epitomises Fiona Radford’s notion of ‘extra complexities’ in terms of her resettlement needs and the necessity of close working multiagency co-operation. Her CRC worker did not visit her in prison but set up a condition of attendance at the drug treatment centre, Inclusion, in Winchester. Kylie relapsed and then went on a 12-step residential programme and has been clean for the past 10 months. Since October, following intervention by her key worker from Inclusion she’s been allocated a one-bedroom fat by the local authority. She is working parttime and talking to local schools about the dangers of drugs and her history of addiction. ‘I wake up in my own place every day feeling grateful and I like myself a little better. The opposite of addiction is connection. I now have key fgures in my life, my restored family, my mentor and trusted ex-users who put me right when I need it.’34 Peter, like Kylie, is a troubled 37-year-old, broken home, ex-care system, street robberies, shoplifting and theft and drug misuse, particularly heroin. He spent 10 months in Bullingdon Prison in 2017 after a bizarre episode of breaking into a cathedral heavily under the infuence of drugs. On release, he experienced intermittent and shallow contact with the CRC probation offcer, meeting her at a day centre for the homeless. He and his partner lived in a tent on a park until the heavy snowfall in 2018 forced them out. Remarkably, the homelessness centre found them two weeks’ accommodation at the local Premier Inn for nothing and then linked them up with the housing department to secure a one-bedroom fat. Peter is now on a methadone prescription, mentored by Inclusion and supported by a local volunteer from a city centre church. He is applying for jobs and for the frst time feels optimistic. His network of local contacts which have worked for him all rely on fragile funding and he worries that some of the walk-in services may go under if not properly supported.35

The role of third sector organisations Dame Glenys Stacey’s Probation Inspectorate issued a press release in April 2018 following a thematic inspection, ‘Probation supply chains’. The fndings were deeply dispiriting – at the launch of TR the Ministry of Justice anticipated that the voluntary sector would play a central role in providing specialised support to offenders. The report presents ‘a bleak and exasperating picture’. Where the third sector is involved the Inspectorate found the quality of the work reasonable overall, but the

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sector is ‘less involved than ever in probation services’ despite the eagerness of many dedicated people to work with offenders.36 Part of the diffculty may lie in the Ministry of Justice terms of contract with the CRCs. Stacey commented that the contracts did not require CRCs to commission specialist services from the third sector. Instead, they contain vague statements of intent about CRCs developing their supply chains. These statements were not enforceable. The Ministry, according to Stacey, failed to authorise a national body responsible for the stewardship of specialist services across the country. In the past, Probation Trusts and probation committees, prior to 2001 were empowered by the Ministry of Justice to set up and oversee partnership arrangements with the voluntary sector in a probation area. Indeed, in the 1990s, probation committees were expected to contract out 10% of the annual budget in partnership voluntary organisations for specialist work with offenders across a whole range of issues. In response to the inspector’s comments about the low level use of the third sector organisations, CRCs claimed that their income was signifcantly lower than anticipated. This factor had curtailed supply chain development in most of the 21 CRCs. In addition, the Inspectorate noted a lack of easily accessible information to get a thorough picture of CRCs’ chains of supply nationally. In the 2017 Annual Report HMIP found interventions most commonly available in relation to drug and alcohol misuse, thinking behaviour and attitudes to reoffending. Across the range of work being done, the least effective work was in the feld of education, training and employment. Tier 2 providers (those contracted to CRC) were simply not doing enough and were unlikely to offer contracts to Tier 3 providers i.e. small-scale specialists NGOs.37 The Inspectorate also found CRCs to be generally less able than NPS divisions to provide specialist interventions across the range of services that they expected to see. They also found little evidence of CRCs conducting a periodic, robust, user need analysis of offenders. By law, they were not required to do so but without it CRCs cannot be sure to commission the right services in the right places. Probation Trusts, the predecessors to CRCs, routinely conducted such analyses. Overall, Stacey noted that where supply chains exist, they are small in scale and the scope of services provided by each Tier 2 provider is usually narrow. These fndings were taken from eight CRCs local delivery unit areas. Depressingly, the inspectors found there was an average of three subcontracted Tier 2 providers in each locality with virtually no Tier 3 providers, particularly where there were locally based NGOs.38

Education, training and employment As already noted in the 2017 Probation Inspector’s Report, CRCs provided little evidence of contracted work with NGOs delivering initiatives in the feld of education, training and employment, but a fourishing development has been taking place since 2016 where small-scale NGOs in alliance with some major companies were taking steps to open up new initiatives. The companies include big retail

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names: Marks and Spencer, Virgin, DHL, Greggs, Prêt a Manger, Timpson’s and the National Grid. An anonymous philanthropist launched the Traverse Trust to put together a website (www.theexceptionals.org) which, to date, has listed over 46 NGOs who offer training and employment opportunities for offenders on release from prison.39 The verifed website data on these companies who have employed people with convictions show the following: 87% say that offenders are at least as productive as non-offender employees, 82% say they performed at least as well, only 7% reported a negative experience; 65% of organisations that chose to promote their appointment of ex-offenders in the media reported a positive effect on their corporate reputation. Employment reduces the likelihood of reoffending by up to 50%. James Timpson, the founder and CEO of Timpson’s shoe repair businesses, said ‘Of all the people we have recruited into our business the highest success rate has been from serving women offenders.’ Richard Branson of the Virgin group said ‘the vast majority of the people that we have employed are still working with us and are valued members of our team.’ Clinks are one of the best-known Exceptionals. The charity operates out of four prisons, each of which has a training restaurant open to the public, offering prisoners skills training as chefs, restaurant staff and waiters. To date, the Clinks Company has processed over 800 prisoners through training and to job fnding on release. Bounce Back is a London-based charity that provides training in prisons and supports people from prison into employment. The skills training includes painting and decorating, dry lining and has recently opened the frst scaffolding centre in a UK prison. It is also a social enterprise that employs people as professional decorators on release, working on projects of all sizes in and around London. Jenny is an ex-prisoner who was supported and trained by Working Chance, a specialist recruitment agency for women offenders; she was placed by the agency in a nine-month paid internship as part of the Speaker’s Parliamentary Placement Scheme. She has since become an MP’s assistant in the House of Commons (www. working chance.org).40 In May 2018, the Ministry of Justice promoted its education and employment strategy which set out measures to boost prisoners’ skills while in custody and improve their chances of securing work on release. This included the formation of a new body, New Futures Network which will work alongside employers to generate job opportunities. Once set up the network will provide a key role in linking local businesses directly with the local prisons and will help establish best practice. Justice Secretary Gauke will have doubtless underlined this point when in March 2019 he gave a Centre for Social Justice Award to Tempus Novo, a charity based in a small offce overlooking Armley Jail in Leeds which has helped 271 ex-prisoners fnd sustainable work with only 15 of them returning to custody. The project is run by two ex-prison offcers and started in 2014. Steve Fraser and Val Wawrosz mobilised local employers across Yorkshire to hire risk-assessed former prisoners and give them a second chance.41

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The ministerial responses of Gauke and Stewart The arrival of Justice Secretary Gauke and Minister of State, Rory Stewart, in 2018 heralded a new approach at the Ministry of Justice after Prime Minister May’s series of reshuffes following the departure of Grayling as the secretary of state. In July 2018, the Ministry of Justice announced that existing CRC contracts would be shortened to 2020 from 2022. CRCs would be aligned with NPS areas making 10 English probation regions. In Wales the CRC service to low- and mediumrisk offenders would be transferred to NPS. Lastly, an extra £22 million would be invested in CRC contracts to improve Through the Gate services.42 By the beginning of 2019, both Gauke and Stewart made encouraging comments on the futility of short-term sentences of under six months infuenced by the poor outcomes of CRC performance of Through the Gate services as outlined in a succession of Probation Inspectorate Reports. They also had sight of the National Audit Offce’s blistering criticism of the CRCs and the woeful lack of planning for the whole TR enterprise. In an interview with Erwin James, an ex-lifer and the editor of Inside Times, Stewart said,‘I would like to scrap sentences of less than three months. The wrong kind of short sentence can damage the individual and damage the public because it can lead to more reoffending.’43 In a press association release the previous week, he had suggested that up to 30,000 criminals per year in England and Wales, serving less than six months, need not be sent to custody.44 Gauke, although less explicit than his minister, has also stated that prison sentences of less than 12 months should be used as a last resort, painfully aware as he was that reoffending rates for prisoners serving less than a year stood at 64.5% as opposed to 38% of those who reoffended after being given a court order such as a community order or a suspended sentence.45 Their combined logic of reducing the use of short-term sentences makes sense but it is dependent on a robust Probation Service capable of commanding authority in respect of sentences at the Crown and Magistrates Court level. Gauke is fully aware that the privatised CRCs have been roundly criticised by the Probation Inspectorate between 2016/18 as well as the House of Commons Justice Committee for poor standards of community supervision, inadequate staffng numbers, unworkable caseloads and little sentencer confdence. Indeed, Amyas Morse, the head of the NAO in a Guardian interview said he felt angry ‘when I see badly thought through programmes and wasted public money’.46 He was mindful, among other examples, of changes in probation costing £467 million to put right what he called ‘inappropriate bravado’ on the part of government ministers. ’We don’t need people jumping out of an aeroplane in the dark with a parachute of taxpayers’ money.’ And yet, Gauke faced with the opportunity to re-let the CRC contract back into public sector in 2020 chose to stay with the private sector with the exception of Wales. Speaking in Parliament on March 17, Gauke said he would not bring the supervision of offenders back into the public sector to replace CRC control.47

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This decision was made in the light of the collapse of Interserve which went into administration on 15 March. GMB union sources reported that Interserve was handed £670 million worth of government contracts before it went into administration. Under a refnancing process Interserve public services, including CRCs, will be managed by an administrative company called EY.48 Interserve as previously noted, is a big player in the CRC league with six probation contracts. With the collapse of Working Links in Devon, Dorset and Wiltshire, Gauke’s faith in the future of CRCs and their many failures, looks ill judged and expensive. He had been warned. On 11 January 2019, seven leading executives from criminal justice NGOs, NAPO, Unison and GMB wrote to him expressing concern over the short timeframe for the government’s proposal to realign and re-let contracts. They reminded him that the timeframe for re-letting contracts would be far too short, even shorter than that which was attached to the original TR project. They then listed a number of issues which needed to be addressed in the interim period before 2020, including an examination of the payment and proft model especially as the cost to strengthen specifcations is likely to increase delivery costs signifcantly. Other issues included rules in respect of monetary provision, particularly since the proposed contract areas will be much larger; staffng issues including TUPE/staff transferred to new employers and related pension issues; the reunifcation of Wales, the governance and management arrangements; more effective commissioning of third sector agencies and the realignment of NPS with proposed CRCs. They also laid stress on the importance of a rating assessment (risk register) which was not made available to the public before TR 1 was announced. In urging a realistic time schedule, the author’s view is that the contracts should be taken back into public ownership no later than 2020. This would allow suffcient time to properly consider and plan for future organisational arrangements. As a tailpiece, the group told Gauke that the split between NPS and CRC had occasioned multiple diffculties in offender management work, readily recognised by Probation Inspectorate Reports. Gauke appears to partly recognise this in the model that will be adopted in Wales. Yet there is no allowance in the timetable for any evaluation of the revised model in Wales prior to CRC contracts being re-let.49

Conclusion Grayling was right to target interventions on those prisoners serving less than 12 months. They represent the most needy and the most chaotic group of offenders in the prison estate and they are the most likely to reoffend within a short time of release. He could have chosen Probation Trusts in combination with voluntary sector providers to take on the challenge of linking together to set appropriate services in terms of focussed supervision. Probation services were working well under public ownership. In 2013, the Ministry of Justice rated all 35 publicly owned Probation Trusts in England and Wales as good or excellent. However, Grayling made an ideological choice of private providers with no experience of managing

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offenders in the community with the exception of Durham Tees Valley CRC, an amalgam of public funded agencies and the voluntary sector. The outcome was predictable. Dame Glenys Stacey in her swansong ‘Annual Report of the Probation Inspectorate’ described the current system as ‘irredeemably fawed’ and said we would all be safer if the supervision of offenders in England and Wales went back into public ownership.50 Morale in CRCs according to Probation Inspectorate Reports is rock bottom with over-burdensome caseloads, severe staff shortages, redundancies of qualifed probation offcers and over-reliance on unqualifed staff from agencies. Outside the narrow political agendas there is a recognition by the NAO, the Probation and Prison Inspectorates and the cross-party House of Commons Justice Committee that the privatisation of probation supervision has been an expensive failure leading to unsafe communities, higher reoffending rates and a loss of confdence by judges and magistrates in community-based options as an alternative to a prison sentence. In particular, the Through the Gate services for short-term prisoners has been a policy disaster and an operational mess but there is no shortage of capable staff in the public and voluntary sector of resettlement services who know what needs to be done to put things right. It also demands the political will, vision and courage of future ministerial post holders to abandon private probation providers and restore what John Naughton described at the outset of this chapter as a renewed belief in the principles of public service and communal values. (All the names of offenders mentioned in the script have been fctionalised.)

Notes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Oakley M (2016) The Splash of Words, Canterbury Press, p. 57. Private Eye (2014) number 586. Monaghan A,‘Inter-serve’, The Guardian, 7/2/2019. Catch 22,‘Press release’, London, 3/10/2018. Private Eye (2017) ‘Crime repays’, number 1450. Harding J (2015) ‘From planning to practice: pioneering community service orders in England and Wales, 1972–74’, in Wasik M and Santatzogiou S (eds) The Management of Change in Criminal Justice, Palgrave Macmillan, p. 138. Robbins J,‘The probation service’, The Guardian, Society, 13/3/2019, p. 32. Press release from Secretary of State, the Ministry of Justice, David Gauke, 27/7/2018. Webster R (2019) ‘First probation provider goes bust’. Online at russellwebster.com. Ibid., p. 2. National Audit Office (2019) ‘Transforming rehabilitation progress review’, 1/3/2019. Ibid., p. 1. Ibid., p. 2. The House of Commons Justice Committee Report (2018), 22/6/2018. Joint Inspection Report of HM Prison and HM Probation Inspectorate Report on Through the Gate Services for Short-Term Prisoners, October 2016, p. 12. Ibid., p. 2. Joint Inspection Report of HM Prison and HM Probation Inspectorate’s on Through the Gate Services for Prisoners Serving under 12 Months, June 2017. Ibid., p. 10. Harding J,‘Interview’, 9/1/2019. Harding J,‘Interview’, 2/2/2019.

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21 Harding J,‘Interview’, 6/11/2018. 22 Prison Reform Trust, Broken Trust Survey, December 2018. 23 Joint Inspection of HM Prison and HM Probation Inspectorate’s Report on Through the Gate Services for Short-Term Prisoners, October 2016, p. 7. 24 Ibid., p. 2. 25 Harding J,‘Interview’, 13/11/2018. 26 Ibid., p. 2. 27 Ibid. 28 Joint Inspection Report by HM Probation and HM Prison Inspectorate’s on Through the Gate Prisoners Serving Less than 6 Months, June 2017. 29 The Chief Probation Inspector’s Annual Report, 14/12/2017, p. 59. 30 Goddard E,‘Rough sleeping’, The Guardian, 28/11/2018. 31 Homeless Reduction Act 2017, Section 10, HMSO. 32 Harding J,‘Interview’, 18/12/2018. 33 Harding J,‘Interview’, 10/12/2018. 34 Harding J,‘Interview’, 15/11/2018. 35 Harding J,‘Interview’, 9/3/2019. 36 HM Inspectorate of Probation, Supply Chains Report, April 2018. 37 HM Inspectorate of Probation, Annual Report 2017, figure 44. 38 HM Inspectorate Probation Inspectorate Report, Supply Chains, April 2018. 39 Traverse Trust, www.theexceptionals.org 40 Working Change, www.working change.org 41 Burn C, Yorkshire Evening Post, 13/3/2019. 42 Ministry of Justice,‘Press release’, 27/7/2018. 43 James E,‘Interview with Rory Stewart’, The Guardian, 23/1/2019. 44 Press Association release, Rory Stewart, 12/1/2019. 45 Sunday Times ‘Interview with the Secretary of State for Justice, David Gauke’, 27/1/2019. 46 Dudman J,‘Interview with Amyas Morse’, The Guardian, 20/3/2019. 47 Matharu H, ‘Government committed to private companies running probation’, Bygone Times, 13/3/2019. 48 Brignall M, The Guardian, 18/3/2019. 49 Schofield H et al., Letter to David Gauke, Secretary of State for Justice, Probation Institute, also signed by Ian Lawrence, Ben Priestley, Phil Bowen, Richard Garside, Frances Crook and George Georgiou, 12/1/2019. 50 Hobbs C,‘Chris Grayling’s worst failure’, The Guardian, 29/3/2019.

7 THE ROLE OF PAYMENT BY RESULTS IN PRIVATISING THE PROBATION SERVICE Russell Webster

Payment by Results (PbR) has become a politically popular method of paying providers of public services chiefy because of its promise of improved effectiveness and more effcient use of public money. It was particularly key in the (part) privatisation of the Probation Service through the government’s Transforming Rehabilitation (TR) project – making contract payments contingent on reducing reoffending allowed Chris Grayling, the justice secretary in charge of the privatisation, to counter critics of TR by claiming that new private providers simply wouldn’t get paid if they didn’t do a good job: They [the TR plans] will also mean we only spend taxpayers’ money on what works when it comes to cutting crime.1 This chapter starts with a defnition and explanation of Payment by Results before going on to give a brief history of its development and use in the UK. It then turns to the evidence base to ask whether, and in what circumstances, PbR works as a commissioning approach. The details of the PbR reward structure in the private probation contracts are explained and the results to date analysed. The chapter ends with an exploration of the implications of using PbR as a quality assurance tool for the new private probation providers and an assessment of its effectiveness in driving reductions in reoffending before speculating on which parts of the criminal justice system might be suitable for a PbR commissioning approach.

What is PbR? The phrase ‘Payment by Results’ is, at its heart, self-explicatory: it’s a commissioning approach to the delivery of public services where contract payments are dependent on the achievement of specifed outcomes. It shifts the focus from

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paying a contractor to undertake a range of tasks to paying them for achieving a set of policy goals. The simplest example is to be found in the worklessness sector. Historically, governments paid providers for the work they did in helping beneft claimants into employment. Contracts were measured by the number of claimants seen with expectations around the proportion developing a CV, gaining interviewing skills et cetera. When the government moved to a comprehensive PbR approach with the Work Programme, providers were simply paid on the basis of how many people they found jobs for, with additional payments for how long those individuals were retained in employment. This approach was designed to reward the most effective providers at the expense of the worst performers. It’s hard to argue with PbR in principle: surely we should be rewarding organisations for getting the job done rather than ensuring that boxes are ticked? PbR was originally targeted at intractable, multi-faceted social problems with the hope that an outcome-focused approach would encourage innovation and more holistic responses. Proponents of PbR argued for a “Black Box” approach where providers should be free to work in any way they saw ft since they would only get paid if they achieved the goals the government set. This was doubly attractive to policymakers since, not only would they only be paying out for successful schemes, but they would also be able to save large sums of money by forgoing the typically intensive and extensive bureaucratic performance monitoring systems designed to ensure that public money was appropriately spent. A third beneft was the attraction of new commercial and philanthropic investors into fnancing public services. Payment by Results has always been closely associated with Social Impact Bonds and other new forms of social investment. The frst Social Impact Bond (SIB) was formed to fund what is perhaps still the best-known Payment by Results funded project, the ONE Project run by the St Giles Trust to reducing reoffending among short-term prisoners at Peterborough Prison. The ONE project was funded to the tune of £5 million raised from 17 private (mainly philanthropic) investors in the UK and the United States. The SIB was structured so that if the ONE project succeeded in cutting the reoffending rate of the 3,000 short-term prisoners it was designed to help over a six-year period, the investors would receive a return on their investment funded by the Ministry of Justice and the Big Lottery Fund. The fnal evaluation2 of the initiative found that it cut reoffending by 9% over expected rates, although the ONE Project itself was closed with resettlement work being taken over by the local Community Rehabilitation Company. Again, the political advantages are considerable: outside investors not only bring new sources of capital but take all the risk of funding new approaches to expensive social problems. It is not surprising then that Prime Minister David Cameron repeatedly espoused the benefts of PbR, saying: By the end of 2015, I want to see payment by results spread right across rehabilitation.3

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Payment by results in the UK Given prime ministerial encouragement and the stringent reduction in public spending under “austerity”, it’s not surprising that PbR schemes proliferated across government. In its 2015 report on payment by results4, the National Audit Offce identifed 52 schemes containing an element of PbR which were worth a total of at least £15 billion of public money. The main schemes were: • • • • •

The Work Programme (DWP) worth £3.3bn over 9 years Transforming Rehabilitation (MoJ) worth £3.15bn over 7 years New Homes (DCLG) £3.4bn over 5 years Troubled Families (DCLG) worth £448m over 3 years (and subsequently extended for a further £200m over 5 years) A large number of international aid projects (DFID) worth over £2bn

The proportion of the contract value paid on a PbR basis varies considerably between schemes. For the ONE project, 100% of payments were outcome-based; whereas the PbR component of DFID’s Rwanda education sector programme was only 9%. Typically, the proportion of a contract paid on a PbR basis started relatively low (otherwise providers would struggle to achieve adequate cash-fow if they received no income until outcomes had been achieved and verifed) and increased over the life-span of the contract. In the case of the Work Programme, providers were paid for seeing claimants in the frst year of the contract, but by year three payments were completely based on providers achieving the specifed targets in getting claimants into a job that lasted for at least 26 weeks with additional payments for retention in that job up to a maximum of 52 weeks.

Does PbR work? Payment by results is an increasingly common commissioning model; found across a number of disparate sectors – from defence to international development – and growing in popularity all over the world with initiatives particularly common in Australia, the United States and the UK. The PbR “movement” can be traced back at least as far as the 1990s and even earlier; the frst big wave was probably the trend for payment for performance in US healthcare. PbR has also been integral to the design of government initiatives to get unemployed people back to work in Australia and the UK since the 1990s. However, as we have seen, it has become much more widespread, in the UK in particular, since 2010 when it was championed by the government in general and the Treasury in particular. This rapid growth of PbR schemes has taken place at the same time as substantial cuts in public services. The association of many PbR schemes with very robust cost-cutting and/or the privatisation of previously public markets has caused considerable controversy and confusion which has enabled researchers working from the same data to reach

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opposing conclusions about the same initiative. By way of illustration, those who saw the Work Programme as being primarily about helping long-term unemployed people back to work with the least investment of public fnances will assess it as very successful – the Work Programme performed at the same level as the programmes preceding it, but was £41 million (2%) cheaper5. Conversely, those who thought it was designed to get people with entrenched diffculties such as disability or addiction into work concluded that it has failed since most providers decided it was uneconomic to work with this “harder to help” group and invested their resources in people whom they could place in jobs more easily, maximising the value of their contracts. There has also been widespread criticism of the growth in PbR despite the lack of an evidence base to guide whether and in what circumstances it can be effective. A literature review undertaken by myself in 20166 concluded that PbR schemes are so varied, tend to be commissioned for such different reasons (to improve outcomes and/or stimulate innovation; to reduce costs, to transfer risk from government or commissioners, to encourage new markets), and are so often poorly evaluated, that it was not yet possible to pass judgement on whether the PbR model works. There are a number of examples of positive PbR schemes in this and other countries. There are, however, almost certainly more examples of badly designed PbR schemes which have failed. The literature provides a mixed picture of the performance of projects funded via a PbR approach with examples of successes and failures given following.

Successes In 2002 the US state of Delaware introduced PbR contracts for its outpatient drug and alcohol services with the main incentives (linked to payments) being increased take-up of services and active patient participation in treatment. Although one provider failed to meet these targets, most providers succeeded: • •

Average capacity utilisation from 2001 to 2006 increased from 54% to 95% The average proportion of patients’ meeting participation requirements went from 53% to 70%

Both these targets were met despite no notable changes in the patient population. One of the key design elements which made the Delaware experiment successful is that the outcome measures appeared meaningful to all the key partners because they: had intuitive appeal to all parties associated with the process. Patients, program [sic] administrators, clinicians and policy makers immediately understand the essence of the intervention. Providers proudly talked about how the performance contracts could work for them clinically and financially. The strategy as implemented simply makes economic, managerial and clinical sense.7

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Another successful PbR initiative was the Reducing Custody Pathfnder set up by the Youth Justice Board which knew that youth custody rates varied massively across councils in England and Wales and set up a PbR pilot to incentivise local authorities to do better. The deal was that if pilot areas could reduce the annual number of custody “bed nights” locally, they would receive additional payment by results funds to reinvest in local reducing offending services. The PbR model was particularly generous; pilot areas received the money up front and only lost out if they failed to achieve the target at which point the funds would be “clawed back”. Although some pilots withdrew from the process at the half-way point, in West Yorkshire, it was extremely successful. West Yorkshire received £1.55m over two years to try to achieve a 10% reduction in the use of custody for young people. The frst thing that the fve Youth Offending Teams across West Yorkshire did was to examine why local young people were in custody. They found different causes in different areas including a lack of accommodation and remand foster carers and mainly law-abiding young people being actively recruited into Class A drug dealing. However, the most surprising fnding was that the number one reason for young people being sent to custody was that they had breached some form of supervision. The prospect of securing considerable funds to reinvest in local services (and the fear of losing funding if they failed) drove those leading the pilot on. They invested considerable time and effort to communicate the reasons behind the initiative to frontline staff and allowed local areas to develop their own responses. Hearteningly, the most important of these was to prioritise “old-fashioned” high-quality work, doing more outreach work and engaging young people into helping services – an approach which successfully drove down breach rates. Not only did West Yorkshire achieve its 10% reduction target, it exceeded this target by an extra 23%, resulting in a one-third reduction in the use of youth custody locally.

Failures On the other hand, there are plenty of examples of where PbR schemes have not succeeded in improving outcomes, including eight drug and alcohol recovery PbR pilots funded by the Department of Health. The fnal evaluation8 of this initiative compared outcomes against the majority of other treatment services in England and Wales who weren’t operating PbR and concluded that the pilots were expensive, delayed treatment entry and had fewer treatment completions.

Critical success factors Although there was insuffcient good-quality evidence to conclude whether PbR as a model works, I was able to access enough good-quality reviews and evaluations to identify 10 key learning points to enable prospective commissioners and providers to take into consideration when designing a PbR-funded initiative. The learning

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points are listed briefy next. As we shall see, many of them are relevant to our consideration of the probation contracts issued for the government’s Transforming Rehabilitation programme. 1 Clarify the rationale for using PbR and design the contract with this primary goal in mind. 2 Restrict the number of outcomes and ensure that these are seen as valuable by commissioners, managers and frontline staff. 3 Use existing, trusted, data systems to measure and verify outcomes. 4 Paradoxical and perverse provider behaviour is to be expected in PbR schemes. 5 Pay careful attention to ensure that vulnerable service users are protected in any PbR contract. 6 Innovation will only happen if directly incentivised. 7 Funding must be sufficient to enable providers to deliver a quality service. 8 PbR schemes should be piloted whenever possible. 9 Balance the needs of existing and potential providers. 10 Be flexible and be prepared to review and modify PbR contracts as unintended consequences are commonplace.

TR and PbR Transforming Rehabilitation was the MoJ’s project for the biggest overhaul of probation since its origins in 1907. It extended statutory supervision to every offender released from custody (instead of restricting it to those sentenced to at least one year’s imprisonment) and sought to introduce a nationwide “through-the-gate” resettlement service. The Probation Service was split into two parts. The National Probation Service (NPS) remained in public ownership and was responsible for servicing the courts and supervising all high-risk offenders. Twenty-one new private Community Rehabilitation Companies (CRCs) were created with responsibility for supervising medium- and low-risk offenders. Public, private and voluntary sector organisations were invited to tender for these CRCs. The timeline for organising the design and implementation for TR was rushed; Justice Secretary Grayling set an immovable end-point of having the CRC contracts signed before the 2015 general election to ensure that any incoming government could not reverse the privatisation. This required MoJ civil servants involved in designing the new split Probation Service and running and evaluating the procurement process to work under considerable pressure – there were just 15 months between the launch of the TR procurement competition in September 2013 and the signing of the contracts on 18 December 2014.

The CRC contracts The MoJ designed the contracts for the new CRCs in order to incentivise their performance against the department’s main objective of reducing reoffending rates.

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The MoJ constructed a payment mechanism with two main elements: Fee for Service (FFS) and Payment by Results (PbR): 1

2

The FFS is primarily paid for mandated activities that deliver the sentence of the court and licence conditions and includes Through the Gate services and Rehabilitation Activity Requirements. PbR is paid for “statistically significant reductions in reoffending against the historical baseline”.

The two elements were related via the Maximum Annual Payment (MAP). The MAP is the total available funding in any year for one CRC. Providers were required to bid a FFS for each year of the contract. The difference between the FFS bid and the MAP was designed to form the basis of the amount available for PbR. The contracts were designed to ensure that those providers who bid a lower price for the FFS would have a better chance of winning. The MoJ also required new providers to include a “learning curve discount” – effectively reducing the price every year, this has the effect of increasing the PbR proportion of the contract every year. The graphic below from the MoJ’s published payment mechanism document is based on a MAP of £11m and a Maximum Biddable FFS of £10m:

During the consultation period, there was a spirited debate between academics, organisations working with offenders and the MoJ about how best to measure reductions in reoffending. A number of issues were highlighted. Firstly, there was a consensus that it is not possible to measure the actual rate of reoffending since many crimes are unrecorded or their individual perpetrators are not arrested and convicted. This was not seen as being problematic in itself since reoffending rates

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have always been calculated on the basis of reconvictions – the number of offenders apprehended and convicted in court for committing a further offence. We also had a long established common approach to measuring reconvictions which examines whether a particular individual was convicted of a further offence in the 12-month period from the date that s/he started a community order or was released from prison. The MoJ had collected this information from many years which meant that we had an extensive baseline against which to benchmark the performance of the new CRCs. Critically, since reconviction data were based on offences formally recorded on the Police National Computer, there was no opportunity for the new providers to selectively record or, in any other way, tamper with the data. The issue which did cause the most debate was the decision about which reconviction metrics to include in the contracts. We know from the evidence base that desistance from crime is not a simple event, but a process. As for most behaviours, the path of change is not a straight line but more of a snakes-and-ladders affair. Success, when it is achieved, is more likely to take place over months and years and involve committing fewer, less serious crimes, rather than simply “turning over a new leaf ” on a specifc day. Any readers who’ve ever tried to stop smoking or lose weight will recognise the diffculties of changing an entrenched behaviour at the frst attempt. Recognition of the situation led many experts to argue that the performance of CRCs should be assessed via a complex basket of reconviction measures which compared not just the fact of whether someone was reconvicted within a one-year period (the binary measure), but also the number of offences committed in that period (a frequency measure) and the seriousness of those offences (the severity measure). In the end, the MoJ decided to make PbR payments on both binary and frequency but not severity measures. The contract also stipulated that providers could only receive the frequency payment if they met the binary target – a contractual term described as “the binary hurdle”. Critics of this decision pointed out that this hurdle might disincentivise CRCs from providing a full service to an individual offender who had already been reconvicted – it would make business sense not to invest further resources into an individual who could not generate additional income. The Probation Service was split into the NPS and CRCs in June 2014 and the new private providers started operating them in February 2015.

Performance against PbR As most readers will know, the model of probation implemented by Transforming Rehabilitation has not been successful. It was clear from the inspection reports undertaken by Her Majesty’s Inspectorate of Probation (HMIP) that the split model caused diffculties of communication and coordination between the NPS and the 21 CRCs. While HMIP found that the performance of the NPS stabilised over time, this was not the case for the CRCs which were the subject of a number of critical inspection reports. Justice Secretary David Gauke acknowledged these failings on 27 July 2018 and announced that the CRC contracts would be cut short with the end date being

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brought forwards 14 months from 2022 to 2020 and the TR model redesigned with a new procurement process starting in spring 2019. The extent of the failings are most easily charted by the new inspection methodology introduced by HMIP in 2018 with the intention of inspecting individual CRCs or NPS divisions (the previous approach had inspected both public and private provision within the same geographical area). The new system rated all providers under a simple four-point scale: “outstanding”, “good”, “requires improvement” or “poor”. Ten of the frst 11 inspections of CRCs under this new approach all rated performance as “requiring improvement”;the other inspection,of the Dorset, Devon and Cornwall area, rated performance as “poor”. HMIP was so concerned about the poor quality of work in this CRC that inspectors immediately notifed ministers and on 15 February 2019 Working Links which operated the Dorset, Devon and Cornwall CRC and two others went into administration, with the three CRCs been taken over by SEETEC, which already operated the Kent, Surrey and Sussex CRC. Exactly one month later, Interserve, which operated fve CRCs also went into administration and transformed into a new company bought out by its creditors. In her 2019 annual report, Probation Chief Inspector Dame Glenys Stacey was extremely critical of the TR model and, in particular, the impact of privatisation. The inspectors found that staff in the Dorset, Devon and Cornwall CRC area were under such workload pressure that they had completed assessments on offenders (in order to meet contractual targets), in some cases before even meeting them. The chief inspector was forthright in the foreword to her annual report9: Probation is a complex social service, with professional judgement at its heart, but probation contracts treat it largely as a transactional business. Consequently, there has been a deplorable diminution of the probation profession and a widespread move away from good probation practice. This is chiefly due to the impact of commerce. Professional ethics can buckle under such pressures, and the evidence we have is that this has happened to some extent. The National Audit Offce (NAO), in its progress review of Transforming Rehabilitation published in March 2019,10 cast an expert eye over CRCs’ performance against its reoffending targets. The Ministry expected CRCs to achieve what the NAO classifed as “a modest reduction” in reoffending of 3.7 percentage points over the contract period between 2014–15 and 2021–22. As I have noted, it tracks CRCs’ performance in reducing reoffending through two measures: 1 2

The percentage of offenders who have reoffended (the binary rate); and The average number of reoffences per reoffender (the frequency rate).

Overall, between 2011 and March 2017, there was a 2.5 percentage point reduction in the proportion of proven reoffenders. However, the average number of reoffences per reoffender increased by 22% over the same period.

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Under the contracts, the Ministry and CRCs agreed a contractual baseline of average reoffending rates in 2011. The baseline was signifcant because it affected CRCs’ income under the payment by results arrangements. Overall, CRCs had not achieved their reoffending targets against the original 2011 baseline. Just six out of 21 CRCs achieved statistically signifcant reductions in the proportion of reoffenders in all six quarterly offender cohorts, between October 2015 and March 2017. In addition, against the 2011 baseline, 19 CRCs had statistically signifcant increases in the frequency of reoffending in 2016–17.

Was PbR a ft for probation? In its progress review, the NAO explicitly evaluated whether this PbR approach was suited to probation services, using an evaluation framework against its own criteria developed in an earlier publication11 on the government’s use of PbR. The NAO judged that the MoJ had not met seven out of the 10 criteria. I have summarised their judgements in the next section, the “Pass/Fail” indication is the NAO’s conclusion and I have added my own analysis on each key point.

1

Did the PbR scheme have clear overall objectives, capable of being translated into a defned set of measurable outcomes?

Fail: The NAO notes that the MoJ is not able to measure reoffending but relies on the proxy measure of “detected reoffending resulting in a conviction”. For me, the more signifcant issue is that the MoJ had too many conficting objectives to make TR a success. The primary drivers of the initiative were political: to privatise part of the public sector and to cut public expenditure. These objectives effectively distracted from and undermined the publicly espoused primary objective of reducing reoffending.

2

Was there a clearly identical cohort/population?

Pass: The Ministry identifed offender cohorts to track reoffending outcomes. The MoJ is able to examine the offending characteristics of cohorts of offenders in different CRC areas to measure actual reconviction rates against those expected for a particular group.

3

Was it possible to clearly attribute outcomes to provide interventions?

Fail: The NAO judged that the MoJ could not attribute changes in reoffending to providers’ interventions. For me, this is the central point. Reconviction rates have gone down over the last fve years despite the fact that the probation system has been under-performing. Probation Trusts were badly disrupted by the planning for TR which most actively resisted. Staff were demoralised and concerned about their

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individual futures and yet reconviction rates still fell. Once the new private providers were in place, performance demonstrably fell further according to HMIP inspections and reports by other public bodies. In most areas, staff numbers fell and workloads rose, yet reconviction rates fell again. In the judgement of myself and other criminal justice commentators, there is a straightforward explanation for this: the performance of a local probation service is not the key determining factor of changes in local reconviction rates. Although we cannot be sure about their exact impact, it appears both that changing patterns of offending12 and local police activity are more important. In addition to the fact that there are many fewer police offcers on the streets than a decade ago13, making few arrests14, local police forces might also decide to prioritise or deprioritise particular types of crime, affecting the numbers of offenders arrested, prosecuted and convicted and, eventually, coming under the supervision of the Probation Service either in the community or on release from prison.

4

Were there data available to set a baseline?

Pass: The MoJ had an existing dataset against which reconviction performance could be measured. However, many commentators criticised the fact that 2011 was the year used as a baseline to benchmark performance starting in 2015. The MoJ acknowledged in its consultation document15 for the redesign of TR that the baseline needed updating.

5

Was an appropriate counterfactual constructed?

Fail: The justice secretary cancelled the pilot probation PBR schemes with the result that the MoJ could not evaluate CRCs’ relative effectiveness in reducing reoffending under an alternative delivery model. As I highlighted earlier, unintended (and sometimes perverse) consequences are commonplace in PbR schemes and piloting is strongly recommended by the literature.

6

Are services non-essential and can under-performance or failure be tolerated?

Fail: It was clear from the outset that the MoJ had concerns about privatisation, evidenced by its retention of the supervision of high-risk offenders in the public sector. As we have seen, the decision to design a split service created many operational diffculties of its own.

7

Are there suffcient providers prepared to take the contract at the price and risk stipulated?

Fail: In fve CRC areas, there was only one tender compliant with the MoJ bidding criteria. The emphasis on low pricing resulted in the MoJ having to provide extra funding and was the major contributory factor in two providers going into

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administration. In March 2018, CRCs forecast collective losses of £294 million over the life of the contracts compared with £269 million profts expected at the bid stage – a difference of more than £563 million. This is a classic case of the “winner’s curse”16 where organisations involved in public outsourcing programmes bid at too low a level to secure a contract which they subsequently fnd is uneconomic to deliver.

8

Is there suffcient evidence about what works to enable providers to estimate the cost of delivering services?

Fail: The complexity of an individual offender’s needs and the fact that desistance from crime is often a lengthy process affected by external factors such as the availability of housing and employment means that it is diffcult to know the true cost of an effective approach to reducing reoffending. TR’s diffculties were exacerbated by its implementation in a time of austerity which meant that offenders found it much more diffcult to access key services such as supported housing and drug and alcohol and mental health treatment services which are critical to resolve issues which drive their offending (and reoffending) behaviour.

9

Are providers likely to respond to fnancial incentives?

Fail: Payment by results did not infuence providers to invest in services mainly because they were receiving lower fee-for-service income than expected17. However, it also became clear that providers’ interventions did not have a direct impact on reconviction rates (see point 3).

10

Is there a relatively short gap between providers’ interventions and outcomes?

Fail: The two years it takes for proven reconviction data to become available undermined the effectiveness of the PbR approach. Providers under PbR schemes tend to focus their behaviour on the stipulated outcomes in order to maximise their income. However, it quickly became clear to the companies operating CRCs that there was not a direct and prompt link between their operations and the reoffending targets in their contracts.

Conclusion At the time of writing, justice ministers are still to decide the format of the revised model of Transforming Rehabilitation; it appears that they are actively considering reducing the role of the private sector and doing away with a Payment by Results approach to procurement, although no decision has yet been made and, as magistrates like to say, all options are under consideration. What is clear, however, is that PbR was seen as a key lever for driving through the implementation of the part privatisation of the Probation Service. It is equally clear

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that Payment by Results was not an appropriate commissioning approach for this task for a range of reasons, the most important of which was the confusion around its purpose. PbR was sold as a way of tackling an entrenched social problem – the very high reoffending rates of short-term prisoners – in a way which would stimulate innovation and new ways of working, while ensuring that private providers delivered on their contracts, delivering maximum value for the public purse. However, by the time that the commissioning approach had been shaped by the procurement process and the continued impact of austerity, it appeared that the primary rationale for PbR was to drive down costs and usher in privatisation. The new CRC providers were hamstrung by being underfunded and at least some prioritised commercial benefts over doing a good job. PbR should have been an effective remedy to this problem, prioritising long-term gains – the reduction of reoffending – against short-term profts. However, it soon became clear that local reconviction rates were not suffciently linked to probation performance to be an appropriate measuring stick. Indeed, our experience of Transforming Rehabilitation has thrown into question whether these rates can ever be a reliable measure of probation performance, whatever the model of provision. We have concluded that Payment by Results is not an appropriate commissioning model to drive effectiveness in reducing reoffending. However, PbR is consistently found to focus provider behaviour on the outcomes linked to their income, as was the case in West Yorkshire when local youth justice teams successfully reduced the use of custody for young offenders. So, in theory, could not PbR be effectively used in other parts of the criminal justice system to drive provider behaviour? To my mind, there are three important criteria: 1 2 3

A clear relationship between high-quality work and effective outcomes. An independent validation of those outcomes. The opportunity to reinvest savings in local services.

A causal link The key to an effective PbR approach is a direct and dynamic link between the quality of work undertaken and the desired outcomes (and outcome payments). While this link does not appear to exist between the quality of local probation supervision and reconviction rates (although we must hold to the belief that better supervision is a key element in reducing reoffending), it may well be that other such direct links exist.

Validation When looking at PbR within a justice context, it is important to take into consideration any perverse and/or unintended consequences. For example, my view is that it would be inappropriate to use PbR as a way of increasing the proportion of offenders who successfully complete a community sentence as providers

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would inevitably be tempted not to enforce breach proceedings, if these were likely to reduce their income. However, it is possible to foresee an appropriate use of PbR to drive improvements in the justice sector, provided that any improvements are validated by an independent third party such as one of the criminal justice inspectorates.

Justice reinvestment We have seen that using PbR as a way of simply reducing costs can be counterproductive, but it is certainly possible to imagine a more creative and benefcial approach. Perhaps the most important critical success factor for the West Yorkshire scheme was the decision that local youth justice services could retain a proportion of the money saved by reducing the number of custody bed nights to reinvest in local services. This created a virtuous circle of continuous improvement which engaged the commitment of both senior managers and frontline staff who all believed in the appropriateness of the overall objective (exposing fewer troubled young people to the damaging and corrupting effects of imprisonment) and were motivated by the opportunity of developing new and improved services with additional funding. Readers will, of course, make up their own minds about the viability of PbR within a criminal justice context but I can suggest a number of areas where Payment by Results might drive improvement: • • •

Increasing the proportion of people released from prison with safe and decent accommodation Increasing the proportion of prisoners offered the chance to participate in an accredited programme in a timely manner Increasing the number of people sentenced to unpaid work who are able to complete their hours within six months of the sentence being made

As always, schemes would need to be carefully designed and piloted to ensure that Payment by Results works in practice, as well as in theory.

Notes 1 Chris Grayling quoted in a Guardian report of his interview on BBC Radio on 9 January 2013. www.theguardian.com/society/2013/jan/09/chris-grayling-probation-privatisation-reoffending 2 Ministry of Justice (2017) Social Impact Bond Payment by Results Pilot at HMP Peterborough. www.gov.uk/government/publications/final-results-for-cohort-2-of-the-social-impactbond-payment-by-results-pilot-at-hmp-peterborough 3 David Cameron speech to the Centre for Social Justice in October 2012 as reported by Third Sector magazine: www.thirdsector.co.uk/david-cameron-announces-large-increasepayment-by-results-schemes-tackle-reoffending/finance/article/1155878 4 National Audit Office (2015) Outcome-based Payment Schemes: Government’s Use of Payment by Results.

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5 National Audit Office (2014) Report by the Comptroller and Auditor General. The Work Programme, HC 266, Session 2014–15, 2 July 2014. 6 Webster, R. (2016) Payment by Results: Lessons from the Literatue. http://russellwebster. com/PbRlitreview.pdf 7 McLellan, A., Kemp, J., Brooks, A. and Carise, D. (2008) Improving Public Addition Treatment through Performance Contracting: The Delaware Experiment. Health Policy 87, pp. 296–308. 8 ICPR, Manchester National Drug Evidence Centre and User Voice (2017) Evaluation of the Drugs and Alcohol Recovery Payment by Results Pilot Programme Final Report. 9 Her Majesty’s Inspectorate of Probation (2019) Report of the Chief Inspector of Probation, March 2019, p. 3. 10 National Audit Office (2019) Transforming Rehabilitation: Progress Review. HC 1986, Session 2019–2019. 11 Comptroller and Auditor General (2015) Outcome-Based Payment Schemes: Government’s Use of Payment by Results. HC 86, Session 2015–16, National Audit Office, June 2015. 12 The crime figures for the year to September 2018 for example (published in January 2019) reported increases in vehicle offences, robbery and knife crime and a decrease in computer misuse, burglary and shoplifting. 13 The number of police officers in England and Wales fell by over 20,000 between March 2010 and March 2018 to 126,000, a decrease of 13.7%. https://fullfact.org/crime/ police-numbers/ 14 According to the MoJ/Office of National Statistics Criminal Justice Statistics quarterly bulletin for England and Wales covering the year to September 2018 and published in February 2019, the total number of individuals formally dealt with by the criminal justice system in England and Wales has been declining since 2015 and fell 5% in the year to September 2018. 15 Ministry of Justice (2018) Strengthening Probation, Building Confidence. CM 9613, p. 6. 16 A now common phrase in the outsourcing literature. See, for example, Sturgess, G. et al. (2011) Payment by Outcome: A Commissioner’s Toolkit. London: 2020 Public Services Trust at the RSA and Haldenby, A., Harries, R. and Olliff-Cooper, J. (2014) Markets for Good: The Next Generation of Public Service Reform. London: Reform Research Trust. 17 Caseloads were lower than had been expected as fewer people were arrested and a smaller proportion of offenders placed on community orders. The caseload split between the NPS and CRCs which had originally been projected to be that 64% of cases would be supervised by CRCs eventually proved to be just 59% in the private sector.

8 PRIVATISATION OF POLICING Objective reform, ideological revolution or subjective revenge and retribution? John G. D. Grieve

Policing, by its very nature, is not a business to be run for proft. Peter K. Manning (2014:38)

Introduction This chapter concludes that there is no one single explanation of why there is a political imperative of dramatically changing the character of the British Police model (a ‘revolution’ according to Ian Loader [2014:40]). A model that continues to be the envy of the rest of the world (Brown 2014) if not admired by our own politicians. Nor is there a single obvious motivation. What follows is a ‘thought piece’ (Fitzgibbon 2013) but includes some original research. This chapter compares and contrasts some aspects of privatisation of policing with the ‘disastrous’ experiences of the Probation Service (Grierson 2019:1) and asks what lessons can still be learnt. It examines the context and environment for some similarities despite differences and some differences despite similarities. In the course of attempting to understand the many issues involved, some literature has been reviewed, and learning conversations/autodidact opportunities conducted about the sensitising concepts of value for money, reform, professional values and ethics, competition, completion, risk, blame, and their use in ‘language games’ (as developed by Manning 2014) are explored. A chronology of policing crises shows that these concepts predate the current austerity issues. Viewing the development of privatisation collectively can help illuminate the signifcance of the steps being taken. Finally the chapter concludes that signifcant aspects of ethics may not be the same for the public and private sectors; considers the nature of success or failure in an ideological strategy about power as winning a confict between politicians and Police, as opposed to these principles and values, and that the stated purpose about value for money in successful public security and safeguarding has not been achieved.

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This chapter looks at the privatisation of ‘policing’ (with a lower case ‘p’); which ‘policing’ is defned here as the “arrangements made in democratic civilised societies which ensure that citizens keep the peace and maintain lawful order” (Metropolitan Police Instruction Book 1965:1). Policing is hence a wider concept than a public Police Force or Service which is defned as the sworn, mostly uniformed public servants and their support staff. The chapter further considers a long history, that predates the current austerity regime, in public spending reductions in conservative, political concepts of value for money, new public management, market orientation, consumerism, competition and commodifcation of public services as a route to contemporary privatisation (Reiner 2000; Crawford 2003; Savage 2007; Brown 2014; Manning 2014; Loader 2014; Harris 2018). The chapter argues that privatisation was a political instrument as much a part of an ideological political police reform program, and possibly supported by some politicians as a method of retribution or even revenge for some Police activities, scandals and crises. The analysis argues that Police privatisation was largely a poor political strategy and resulted, as with the Probation Service, in impoverished public protection with considerable cost to the public purse. However based on Patel’s model of strategy as power, purpose and principle (Patel 2005) and Freedman’s (2013) defnition of strategy, it may have been a political success in terms of winning during a confict between politicians, in particular a home secretary challenging the Police Federation and Association of Chief Police Offcers (ACPO later NPCC National Police Chiefs Council), and improving partisan power politically. This chapter adopts the defnition of privatisation by Philip Bean which he says: We can link privatisation and outsourcing by placing privatisation on the top of a scale, called Level 1, and outsourcing on Levels 2 and 3. An example of Level 2 would be where a private company, sells “tags” to be placed on offenders, [my italics] and the product, “tagging,” is purchased by a Government agency such as the Probation Service which uses them as part of its legislative duties. An example of Level 3 would be where the probation service purchases equipment from a private contractor and may or may not operate it themselves. (Bean 2019) Examples of Level 1 privatisation for the policing purposes of this chapter are core policing functions such as local patrols key as determinants in communities’ sense of security being privatised to businesses (Halliday 2019) or some aspects of Forensics Sciences hitherto controlled directly by police services purchased from some private businesses and now allegedly ‘compromised’ by lack of integrity in evidential continuity (Devlin 2019a, 2019b:5). Another example at Level 2 would be the privatisation of police catering services or vehicle feet management (Roycroft 2014:194). Some versions of vehicle feet management might also be Level 3

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(Roycroft (2014:191). The complexity of deciphering some of these usages is illustrated by the Person 3 learning conversation (see later in the chapter) who discussed ‘blended’, ‘hybrid’ or ‘twilight’ models of this kind of overlap which may combine aspects of privatisation and outsourcing. Loader (2014:40) describes the ongoing political moves to “engineer a revolution in British policing . . . a fotilla of further signifcant reform initiatives, the scale and speed of which have left many police offcers and police experts aghast”. Those ‘aghast’ include the author of this chapter. These contemporary ongoing political moves (Harris 2018) continue to include privatisation and outsourcing. The chapter explores the context and environment of Loader’s ‘revolution’ and compares and contrasts some elements of the privatisation and outsourcing between policing and probation particularly where the disciplines overlap for instance in the services they provide within the Criminal Justice System in the Courts, for example in giving evidence. A version of the problem is described by Manning (2014:38): Policing, by its very nature, is not a business to be run for profit. These features . . . cannot be found in the private security world, most significantly because they cannot unequivocally represent legitimate authority, they work for profit, and their very use of the symbols of government pollutes the performance and calls it into question. There are concrete matters of how privatisation and outsourcing can alter interpersonal compliance, respect for authority, and trust in the goodwill of those who serve the society. In some sense, it is necessary to ask what are the costs of eroding and contaminating that which is a representation of the collective will, and the confusion attendant on such political moves. That eroding, contaminating and confusion generated by the revolutionary political moves is the core of what this chapter attempts to describe. It should come as no surprise that privatisation in the sense of profts for shareholders for services rendered should have come to wider policing and other aspects of the Criminal Justice System. The Inns of Court from which the Judiciary, Barristers and some other elements of the system are drawn are a proft-making profession and on some accounts are the last remnants of the other monopolistic medieval Guilds and remain jealous of their powers and standards; you question their ethics, integrity, costs and profts at your peril. And the lawyers’ profts from some long-running public inquiries into policing issues have been vast as the costs to the public purse have been immense (Savage 2007; Brain 2010). The other parties to the privatisation changes and thinking are the politicians; here consideration needs to be given to the context and environment that gave rise to the process and instrumental politics of the police revolution ideology. In particular, what might help in understanding about the politician’s motivation? For example is it a strategy of reform, revolution, revenge or retribution? Or on Patel’s model of strategy is it about power, purpose and/or principle (Patel 2005:93)

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(see also Lawrence Freedman’s defnition (2013:xi) later on). Part of this is about the understanding of morality but also related strategic risks. Politicians, Police and policing are in the business of managing risks. Some issues that are similar for all public services are neatly summed up by Wendy Fitzgibbon thus: A privatised probation service will involve a plurality of providers with different histories, working practices, priorities and skills. This has implications for the management of risk. . . . Low cost, low skill and private providers will increase the probability and frequency of the “lost laptop” problem in turn raising issues of human rights and privacy. (Fitzgibbon 2013:87) The risk issues were further explored by Jamal Hylton (2013:171–172): Taking into account the findings of the ‘Engage’ one-to-one structured supervision programme and numerous other probation initiatives, the evidence is that the maintenance and development of practitioner skills and methods is paramount when working with offenders and vulnerable groups. ‘Engage’ is just one example of the methods and initiatives that exist because of the passion, commitment and expertise of probation practitioners. It is the motivation and efforts of probation trusts and practitioners in reducing reoffending, changing lives and protecting victims and the public that have influenced the creation and introduction of best practice skills, methods and initiatives. Unfortunately, it is the opportunity for approaches and initiatives such as ‘Engage’, involving probation expertise and the support of probation trusts, and the input of probation practitioners and service-users alike, that are at risk of being undermined and lost in what is to be the new world of probation and community rehabilitation. There are other arguments in favour of privatising some of the policing functions and Manning (2014:37) lists them though he does not consider them decisive. They could include “increased public/private/competition for quality or service”; “more rational deployment, pay allocation . . . retirement patterns e.g. age limits and examination of the interactions between disability, sickness, absenteeism and retirement”. Person 3 in my learning conversations (see later on in the chapter) robustly expressed the positives thus: First, whenever there are closed minds on any topic, there are likely to be missed opportunities. Second, there were examples of where the private sector already had a quasi policing role, in the shape of auditors, who were employed privately to police the financial activity of vast sections of the public. Auditors have professional training, standards they are required to follow,

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and their conduct is subject to scrutiny by the courts (i.e. they are accountable). But they are definitely a private service doing a quasi policing role. So, in my view it could be done. Third, the market can enhance value for money through competition, and drive price down via the match between supply and demand. It also gives the service receiver the opportunity to specify exactly what service is being sought, rather than being stuck with a single framework for delivery of packaged services (eg the generic services of a PC). If you don’t like the police service you are getting under public provision, you are stuck with it. There is nowhere else to go. Fourth, there are many other publicly provided services, where it is seen as legitimate for parallel provision through the private sector, eg health, education, care of the elderly etc. So why is it a problem for policing also to be provided by different suppliers. Surgeons can kill people, and education affects life chances. Regulation manages to provide accountability in relation to these services. Why was this not possible with the Police. Individuals providing private security to the public require a licence, which requires training qualifications, and there is a regulator. This provides a framework for standards and accountability (although at present I do not think these are of adequate quality!).

A very short history of some recent Police, politics and policing leadership and management reform as a possible source of a political strategy Lawrence Freedman (2013:xi) defnes strategy in a way that could help understanding; it is about balancing ends, ways and means, identifying objectives, resources and methods that are available and how to adjust and adapt these in the light of experiences. It is more than a plan. Although many people see the current fnancial problems of policing including the signifcance of presence or rather absence on the streets as originating from the 2008 banking crisis, the subsequent austerity ideology about the fnancial aspects of policing have much earlier gestation periods. There are two possible threads to the political strategy. First a desire to generally reform the Police role in policing. There is no doubt that a series of high media profles of Police activities in the late 1960s and 1970s (for example the Times Inquiry into Police corruption) gave to rise to fully justifed demands and recommendations from Public Inquiries into Police governance, leadership, values and behaviour (see Ascoli [1979] and Critchley [1967 revised 1978] up until 1974 and then Brain [2010] for a chronology thereafter). This led to a political strategy for changes in policing and reform of Police in respect of their powers and principles. The same kind of scandals never infected the Probation Service and are a signifcant difference to be noted from the outset of this analysis. During the 1970s, 1980s and 1990s a further series of highly critical Public Inquiries and their academic research supporting material e.g. Fisher into the Confait miscarriage of justice case and later with Dr Barry Irving’s support for Phillips Inquiry led to the Police and Criminal Evidence Act 1984 that legislated police

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behaviour for arrests, stop and search, interviewing of suspects. For a chronology of the important role of psychologists and other behavioural scientists in exploring these and other miscarriages of justice and related reforming of policing see table 3.1 in Grieve (2007:46–52). This culminated in a Royal Commission on Criminal Justice under Viscount Runciman that found substantial failings by Police. Later Public Inquiries hugely critical of Police were Stephen Lawrence Public Inquiry and Lord Laming’s into the murder of Victoria Climbie for example (see Savage 2007; Brain 2010). These Public Inquiries have sometimes been called ‘watersheds in policing’. The other thread used to argue for police reform was specifcally fnancial and part of wider fnancial management reforms across the public sector. The paper that underpinned Home Offce (HO) Circular 114/83 emphasised the 3Es,‘effective, effcient and economic’ or rather as originally proposed a 6Es reform program comprising the 3Es but also ‘expertise, experience and experiment’. These latter three concepts were very rarely mentioned or indeed even noticed (Savage 2007). The 1990s introduced New Public Management reforms to Police as the alleged ‘last unreformed Public Service’ (Savage 2007). There were further Public Inquiries that looked at the roles and powers of Police, those of Sir Patrick Sheehy and Ingrid Posen (Savage 2007; Brain 2010). Shearing (1996) was one of a number advisory sources for an independent review of policing (the Sir John Cassels Inquiry see Saulsbury, Mott and Newburn [1996]). None of these recommended privatisation of policing as a remedy to the ills they uncovered. Two other bodies took up the police reform agenda: the Audit Commission1 who pursued best value from public services in the money they spent and Her Majesty’s Chief Inspector of Constabulary (HMCIC) whose enforcement powers were increased to critically audit Police performance. One of the Association of Chief Police Offcers’ (ACPO) responses to these developments was to outsource so-called back offce functions (Savage 2007; Brain 2010). The trends exposed here continued into the 2000s with a highly critical Leadership Review by former Chief Constable Peter Neyroud whose report (Neyroud 2011) relied heavily on US models and their views of Police leaders’ relationships with politicians that would indirectly lead to a role for party political Police and Crime Commissioners (for the complete opposite perspective on Police leadership in far more detail and with a rigorous methodology see Fleming 2015). Relationships with politicians were not improved for the Police who were unhappily required to undertake an investigation into a newspaper exposé of MPs’ and Peers’ allegedly fraudulent expenses (Brooke 2011:221–253) (BBC2 Newsnight Special 13.04.2019) (Anonymous 2019). At the request of the Labour Party in 2011, in the context of the trends towards privatisation and party politicisation apparently away from community policing, the former Metropolitan Police Commissioner Lord Stevens conducted an Independent Police Commission into contemporary policing. Jennifer Brown (2014), one of his co-authors, edited a useful collection of papers to support his conclusions including one by Peter Manning (2014) which contributed to the evidence base of the

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Commission’s thinking (Brown 2014:xxi). Manning was concerned that post the 2008 economic global crisis concern had been to “gear the public services into the ‘market’ or demand for police services without too much regard for criteria, standards or indeed what comprises the ‘market’. The aim has been to reduce the size of the public police. . . . This has been achieved by outsourcing previously public police functions, hiring public corporations and relying on new hybrid units such as PCSOs” (Manning 2014:25). Manning argues that police services can only be profitable to private companies if their “costs plus, ostensibly would exceed the current costs of public service”. He goes on to argue that two different language games are being confated in the arguments that appear to support privatisation. On the one hand ideas such as “effciency, effectiveness, proft, costs. Value for money . . . are borrowed from macro-economics . . . play a role in the proft making language game.2 On the other hand, terms such as fairness, justice, equity, and duty, honour and quality belong to the service language game. To mix, confound and combine . . . is to produce a logical nonsense” (Manning 2014:25). Lord Stevens’s report followed Manning’s thinking and championing as it did the professional ethics public service model. Based on community-oriented models of policing (as opposed to austerity and proft to shareholders) and with their origins in well-founded principles (some of which can be traced back via Charles Reith to Robert Peel’s 1829 ‘New Police’ (Grieve 2015). Stevens did not fnd favour with Conservatives who actively and publicly undermined the report’s launch the same day by announcing an investigation into some of his decisions as Commissioner (Personal Observation and Communication 2015). This was followed by an inquiry into the media ‘hacking’ of text messages and Lord Leveson’s Inquiry into Police/Media Relations, especially with the Murdoch media empire that brought the Police into confict with elements of the media, creating yet another unhappy place for them to be. A Counter Terrorism Branch Investigation requested by the then government led to an investigation of opposition by MP Damien Green and involving other MPs. None of this improved Police standing with many other politicians.

Some literature Useful starting points for privatisation of policing in Police academic literature (as opposed to the HO policy and the reform and Public Inquiry material described previously) are Clifford Shearing (1996) and Adam Crawford (2003) who produced seminal analyses of public and private policing. Shearing (1996:83) was an advisory source for an independent review of policing by the Policy Studies Institute and Police Foundation who sponsored an ‘Independent Committee of Inquiry into the Roles and Responsibilities of the Police’, the Sir John Cassels Inquiry (see Saulsbury, Mott and Newburn [1996]). Shearing introduced the concept of multitiered policing as part of the emerging policy of Police partnerships with private police, social agencies and citizen volunteers to maintain peace and order in public spaces. This, he recorded, as related to community policing and a market mentality

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in government. He proposed a further exploration for opportunities for restructuring policing. Adam Crawford (2003:136) describes ‘policing beyond the police’, public and private policing but also the complexity of hybrid policing, what one of the learning conversations (3) (see later on) for this chapter calls a ‘twilight zone’ somewhere between the public and the private. Crawford argues that there are eight forces driving changes to these three categories which amount to a ‘plural policing’ as opposed to state-managed social control. First, the amount of public, media and hence political concern about security and fear of crime. Second, the limited capacity of the CJS and Police and policing in particular to impact on victims’ perceptions of effectiveness and confdence in the system. Third, the challenges by academics and commentators to the state’s monopoly on security matters. Fourth, the pressure on the public purse described previously. Fifth, the delegation of crime prevention to multi-agency partnerships both public and private. Sixth, a change in the role of the state from doing some policing functions to steering them. This led to the Posen and Sheehy attempts to identify core and ancillary policing functions and later the so-called back offce functions. Seventh, a further group of public fears and demands that related to crime, disorder, anti-social behaviour expressed as a broader concept of community safety rather than crime prevention. Eighth, the growth of the private security businesses as apparent successful proft-makers was mirrored by the decline in the secondary informal systems that governed minor incivilities, such as train guards, park keepers, bus conductors (Crawford 2003:139–142). It should be noted that these drivers of privatisation do not include the scandals, public inquiries and related falling political confdence in the Police described previously. Crawford goes on to describe seven manifestations of privatised policing that these drivers have created or expanded. Local authority patrols, community safety and anti-social behaviour units, policing social housing tenancies through control of nuisance behaviour and exclusion, increased wardens as an example of public auxiliaries, civilian policing for example Crimestoppers, or Street Chaplains, or individual security measures such as CCTV, commercial policing that is employing security guards or patrols (Crawford 2003:142–151). Bringing this list of potential for privatisation up to date could be information technology management, vehicle feet management and maintenance, pension management and payments, mechanistic tasks such processing fxed penalty notices, fnally a number of specialist bodies could also now be added who undertake covert activities formerly the monopoly of the state, either Police or Security Services, for example those identifed by Harfeld and Harfeld in 2018 as some 900 bodies engaged in some kind of policing or investigative activities who were recipients of shared data from Regulation of Investigative Power Act 2000, for instance Benefts Agency (Crawford 2003:142–151); (Harfeld and Harfeld [5th Edition 2018, see also 1st Edition 2005:xii and elsewhere]). The Forensic Science Service and its problems are a case in point, in the teeth of arguments to the contrary the privatisation of this vast and vastly important evidence-providing service was handed over to private companies where sometimes shareholder profts were a priority, not CJS standards

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of evidential quality control (Devlin 2019a, 2019b; Brown 2014; Roycroft 2014:194 Table 12.1). What this chronology shows is an incremental, multi-motivated massive change processes over four decades from Police/policing as artisanal craft tasks and culture to pressures to become a profession via apprenticeships delivered at universities. It is multi-motivated because nobody at the top of government ever directly said it was ‘retribution’, though Theresa May in her seven years as Home Secretary got close to it in her attacks on the Association of Chief Police Offcers (ACPO) (later National Police Chiefs Council [NPCC], itself created to reduce the power of ACPO) and the Police Federation.

Some methodology for research re-privatisation The methodology here is too informal to call the conversations ‘research interviews’; they were more like learning conversations or self-teaching opportunities to aid the ‘human duty to understand’, explore alternate explanations of how we got here (Steinbeck and Ricketts 1942:92). One category of those talked with had specialist knowledge to help understand and derive some sensitising concepts is where n = 4; they are specifc attempts to explore the arguments. Person 1) was a public servant who had transferred to academia, 2) was a Police offcer who moved to civil service policy making, 3) was a Police offcer who moved from public then private to twilight/hybrid and 4) another Police offcer who had moved from public to private. These conversations have been anonymised to avoid any ethical ‘commercial in confdence’ conficts; the thinking here has beneftted from four more academics with experiences in the public sectors, where privatisation has been a debated topic for years. Lastly this author also acknowledges the value of 10 years of teaching a CJS Professional Doctorate component of leadership symposiums with delegates from Police, policing, public and private sectors.

Analysis This chapter is argued to be a ‘thought piece’. The British Journal of Community Justice defnes a ‘thought piece’ thus: ‘Thought Pieces’ are papers which draw on the author’s personal knowledge and experience to offer stimulating and thought provoking ideas relevant to the aims of the Journal. The ideas are located in an academic, research, and/or practice context and all papers are peer reviewed. Responses to them should be submitted to the Journal in the normal way. (Fitzgibbon W (2013) Viewing the critical chronology can help illuminate areas of signifcance and perhaps political motivation. The most powerful sensitising concepts that emerge from both the chronology and learning conversations are ethics, power and risk. Interestingly these are the same concepts that emerge from the Probation Service literature.

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The Conservative Party and conservative ideology of market orientation, consumerism, competition and commodifcation of public services has been hypothesised as a route for austerity apologists to arrive at contemporary privatisation. The relationships between plural multi-tiered policing, private policing, public policing and twilight policing, and their role as solutions still needs some distinctions in explaining and exploring. Morality and ethics emerged from the account offered here as the key and how they can be used in reforms and remedies to challenge abuse of power and explore risk. Person 1 described very much in the style of Manning (2014:25): “‘language games’ [though not actually citing him] the morality and misery encompassed by the language and philosophy of units and profts/loss that was not about the core business of people and their problems”. Person 1 went on to articulate Lord Nolan’s Principles of Standards in Public Life (1996) as “not compatible with proft and loss or describing people’s problems in terms of ‘unit completion’.” A way of looking at this is to consider other values than value for money; an approach might be to consider Nolan’s (1996) account of what are values, what is required behaviour from public servants. These Nolan principles were the preferred values in the conversation of person 3) and they are: Selfessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership, this latter category means promoting the six other standards by example. These may be contrasted with a privatisation obligation to shareholders. Stumbling on any of these Nolan principles can undermine the leader’s role as Police and politicians have discovered. Person 3 also referred to standards and values that were his preferred and were not those of the private sector. Of course it is conceded that the individuals in the private sector can live by these values but the proft imperative causes some tension with at the least the principle of selfessness. The discussion with person 2 picked up this latter point about morality, identifying emerging crimes involving information technology, for example cyber stalking (but see Devlin 2019b for a different view of such involvement). This person went on to describe how the honourable community engagement groups such as charities can help. Person 4 arrived at the differing standards between public service and privatised security via ticketing supervision and turnstile inter-operability that takes what look like back offce functions into areas of high risk. This person considered Hillsborough and former Chief Superintendent Duckenfeld’s alleged criminal decision making (Conn 2018/2019). It is, concluded person 4, “a function of police to take a slap on behalf of society”. It is not a function of a business unless it is derived from civil or criminal proceedings. “It is about political imperatives of being seen to do something about public fears about safety and easiest to blame police and propose reforms.”

Some tentative conclusions There is no one single explanation of why the political imperative of dramatically changing the character of the British Police model which continues to be the envy of much of the rest of the world (Stevens 2014; Brown 2014; Manning 2012) came

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to be. Nor is there a single obvious motivation. The chapter argues in the course of attempting to understand the many issues involved in privatisation of Police/ policing that the sensitising concepts of reform, retribution, competition, completion, risk, blame, and their use in ‘language games’ of privatisation, of value for money as reductions to the cost to the public purse and the related issues of shareholder profts when compared to the values of the existing democratic model (as developed by Manning 2014:25, 30–37) have been particularly useful. Further using similarities despite differences, differences despite similarities between Police/policing and Probation Services amongst other threads, contained the warning that privatisation was a poor strategy for objective reform, if successful possibly for subjective retribution or revenge, or the political use of power to avoid any political blame. There was also tension with the democratic ideal of what are called the Peelian Principles which owe much to the frst Commissioners Rowan and Mayne, and later to Charles Reith (see Grieve 2015). This argument was based on Patel’s model of strategic power as winning in a (in this case political) confict with the Police Federation and the Association of Chief Police Offcers (ACPO) which later morphed into the National Police Chiefs Council (NPCC), whilst eliding purpose and principle (Patel 2005) and the defnition of strategy by Freedman (2013). The last word goes to Manning (2014:38): Policing, by its very nature, is not a business to be run for profit. These features [of a democratic police described previously] cannot be found in the private security world, most significantly because they cannot unequivocally represent legitimate authority, they work for profit, and their very use of the symbols of government pollutes the performance and calls it into question. There are concrete matters of how privatisation and outsourcing can alter interpersonal compliance, respect for authority, and trust in the goodwill of those who serve the society. In some sense, it is necessary to ask what are the costs of eroding and contaminating that which is a representation of the collective will, and the confusion attendant on such political moves. That eroding, contaminating and confusion and its possible social toxic legacy is what this chapter attempts to describe.

Notes 1 The Audit Commission sounded the passing bell for the part privatisation of Probation Services when it publicised the £171m cost to taxpayers. The Guardian, 02.03.2019:11 no author shown. See also Grierson (2019). 2 I have been an admirer of Manning for many years and I think this phrase derives from Wittgenstein, ‘Philosophical Investigations’, but Manning does not explain its origins nor cite Wittgenstein in the paper. ‘Game’ in this context would then not be a frivolous pastime but an example of the multiple ways a word can be used from a game of chess to a game of rugby for example.

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Inman P. (2018) The Private Sector Was Never Going to Deliver When It Came to Building an Atomic Future. Guardian Newspaper London, Friday 09.11.2018, p. 35. Klein N. (2017). How Private Companies Proft from Disaster. The Long Read Guardian Newspaper London, Thursday 06.07.2019, pp. 27–29. Loader I. (2014) Why Do the Police Matter. Beyond the Myth of Crime Fighting. In Brown J. (ed.), The Future of Policing. Abingdon, UK: Routledge, pp. 40–50. Manning P. K. (2014) Policing, Privatising and Changes in the Policing Web. In Brown J. (ed.), The Future of Policing. Abingdon, UK: Routledge, pp. 23–39. Nash M. and Williams A. (2010) Handbook of Public Protection. Abingdon, UK: Willan. Newburn T. (ed.) (2003) Handbook of Policing, Abingdon, UK: Willan. Neyroud P. (2011) Discussion Paper on Police Leadership. London Home Offce. Nolan L. (1996) Principles and Standards in Public Life. London. HMSO. Patel K. J. (2005) The Master Strategist: Power Purpose and Principle. London: Hutchinson, Random House. Reiner R. (2000) The Politics of the Police. Oxford: Oxford University Press. Roycroft M. (2014) A Blended Model for the Public-Private Provision of Policing for England and Wales. In Brown J. (ed.), The Future of Policing. Abingdon, UK: Routledge, pp 191–202. Saulsbury W., Mott J. and Newburn T. (eds.) (1996) Themes in Contemporary Policing. London: Policy Studies Institute, Police Foundation and Independent Committee of Inquiry into the Roles and Responsibilities of the Police (Cassels Inquiry). Savage S. (2007) Police Reform: Forces for Change. Oxford: Oxford University Press. Savage S. and Goulding B. (2008) Leadership and Performance Management. In Newburn T. (ed.), Handbook of Policing. 2nd Edition. Devon, UK: Willan, pp. 725–759. Shearing C. (1996) Public and Private Policing. In Saulsbury W., Mott J. and Newburn T. (eds.), Themes in Contemporary Policing. London: Policy Studies Institute, Police Foundation and Independent Committee of Inquiry into the Roles and Responsibilities of the Police (Sir John Cassels Inquiry), pp. 83–95. Steinbeck J. and Rickets E. (1942) Log of the Journey to the Sea of Cortez. London: Penguin Classics. Stevens J (2013) Independent Commission into the future of policing. The Labour Party. Toynbee P. (2018) Outsourcing Public Services: A Dogma that has Run Out of Road. Guardian Newspaper London, Monday 26.03.2018, Journal section, p. 4. Waterman P. (2019) It Will Take Years to Recover from Probation Fiasco. Letters to Guardian Newspaper London, 17.05.2019, Journal section, p. 8. Worthington M. (2019) It Will Take Years to Recover from Probation Fiasco. Letters to Guardian Newspaper London, 17.05.2019, Journal section, p. 8. Wright A. (2002) Policing:An Introduction to Concepts and Practice. Cullompton, Devon:Willan.

9 PRIVATE SECURITY AND THE PRIVATISATION OF CRIMINAL JUSTICE Adam White

Introduction In basic terms, security relates to the protection of persons and property against unwanted harm or damage. It is regarded by intellectuals, politicians and citizens alike as nothing less than a foundational human good – without it, society falls apart. Throughout modern (capitalist) history, the responsibility for delivering this good has fallen across the public, private and third sectors to varying degrees. Following scholarly convention, in this chapter private security is taken to mean the delivery of this good through the private sector, most commonly (though not exclusively) by companies such as G4S, Mitie and Securitas. The relationship between private security and the privatisation of criminal justice is not straightforward. Among other things, it depends on one’s defnition of privatisation, a notoriously slippery term. For present purposes, it is useful to distinguish between two (equally valid) types of defnition: most exacting and least exacting ones (White 2018). Most exacting defnitions refer to the transfer of criminal justice infrastructure or services from the public to the private sector (see Introduction). Conceived thus, the history of private security is independent of but also overlaps with the privatisation of criminal justice. By contrast, least exacting defnitions relate to broad shifts – rather than specifc transfers – over the longue durée between the public and private sectors across the criminal justice landscape. Formulated this way, the history of private security is intrinsic to the privatisation of criminal justice. Importantly, these defnitions are not mutually exclusive. It is possible, for instance, to construct a narrative which operationalises a least exacting defnition in the frst instance, but also incorporates a most exacting defnition as and when appropriate. This is the approach adopted in this chapter. Drawing upon the UK case, its main objective is to map out the history of private security against the backdrop of the ever-shifting public/private divide in the criminal justice landscape while, at the same time, drawing particular attention

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to those moments which entail the more specifc transfer of criminal justice infrastructure or services from the public to the private sector. The chapter is divided into four sections. The next section examines the rising demand for private security in the postwar era. It details six different but complementary sources: the fscal crisis of the state, escalating crime and fear of crime, the proliferation of transnational corporations, the emergence of mass private property, the formalisation of crime control and the ascendancy of public sector outsourcing. The subsequent section explores the supply of private security in the postwar era. It analyses not only how savvy entrepreneurs have tailored particular services in response to the needs of buyers, but also how they have sought to confer the symbolic power of the state upon these services so as to align them with the statecentric cultural sensitivities of buyers. The following section surveys the different regulatory mechanisms which seek to align private security with the public interest, from criminal and civil law to critical public discourse and statutory instruments. The fnal section pulls together the preceding observations on supply, demand and regulation into a discussion about the relationship between private security and the privatisation of criminal justice (variously defned).

Demand Not much is known about the demand for private security under conditions of capitalism prior to World War II. This is not because it did not exist – it most certainly did (see Churchill 2016). But for the most part it occupied only the margins of the criminal justice landscape. The preceding century had played witness to the growth and consolidation of the criminal justice system frmly in the public sector, with the establishment of the Metropolitan Police in 1829, the nationalisation of prisons in 1878 and the gradual move towards the nationalisation of probation which was eventually completed in 1948. It was these landmark moments in the development of the modern nation-state, not the comparatively low-key endeavours of private security, which have understandably captured the lion’s share of scholarly attention. In the postwar decades, however, demand for private security began to rise and scholars accordingly set about giving it more consideration. This section examines some of the key explanations for this rising demand, before refecting on what they say about the relationship between private security and the privatisation of criminal justice. The frst explanation is usually referred to as the fscal crisis of the state. It coheres around series of well-known events which (in brief) run as follows. After World War II, democratically elected governments in the UK (and indeed right across the Global North) sought to address ever more social issues through an expansion of public service provision in an effort to win the support of welfare-hungry voters. During the 1970s, this resource-intensive process ran into an economic recession and a corresponding shrinkage in the tax base needed to sustain it, causing the state to become – in the emotive rhetoric of the day – ‘overloaded’ (King 1975). Public spending cuts and caps were rolled out by successive governments to ease the burden on the exchequer. The resulting constraints on police budgets, so the

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story goes, opened up a crime control vacuum and a rising demand for security, which was duly satisfed through the private sector rather than the embattled public sector. The straightforward logic of this explanation is compelling, yet it has to be handled with caution. As Jones and Newburn (1998, pp. 98–104) observe, while constraints on police budgets were common during this period, they were not universal. Between 1970 and 1990, for instance, the number of police offcers in the UK actually increased by 35 percent (Braithwaite 2000, p. 49) – a trend which at frst glance appears to undermine the logic of the fscal crisis narrative. On closer inspection, however, this is not necessarily the case, so long as this narrative is considered alongside a second (complementary) explanation. The second explanation concerns the contemporaneous (and not unrelated) escalation in crime and fear of crime. During the 1970s and 1980s recorded crime experienced a steep increase in many parts of the world, the UK included (Maguire 2007). While the cause is complex and much debated, one often cited factor is the aforementioned retrenchment of public service provision and the ascendancy of a more consumerist culture in its place, which not only exacerbated socio-economic inequality, but also prompted the poor to expect and demand the lifestyle of the rich more than ever before. This combination is viewed as fuelling not just recorded crime but also fear of crime, particularly among those who had more to lose (Reiner 2007). For present purposes, an important corollary of this cause was that it also stimulated demand for security (Zedner 2003) – a demand, moreover, which (connecting back to the fscal crisis narrative) even the best-funded police forces could not meet. As such, escalating crime and fear of crime set against the backdrop of the fscal crisis of the state is regarded as central to understanding the rising demand for private security. The third explanation adds a further variable in to the mix – the changing nature of capital accumulation at this time. During the postwar era, it became increasingly common for large companies to outgrow their national shells and seek out new opportunities for production and consumption abroad. Indeed, by the turn of the 21st century, 51 of the 100 largest economic entities in the world were not nationstates but huge companies such as General Motors, Wall-Mart and Exxon-Mobile, whose commercial operations stretched right across the globe (Anderson and Cavanagh 2000). Watching this trend unfold in the late 1970s, Spitzer and Scull (1977) started to make important connections between the proliferation of transnational corporations and the rising demand for private security. They noted, for instance, how national police forces were not only facing budget constraints and escalating crime and fear of crime but were also often ill equipped to deal with these fuid cross-border resource fows which extended far beyond their jurisdictional reach, and accordingly drew attention to how these corporations were turning to the private sector to fll this security vacuum. In Spitzer and Scull’s (1977) narrative, the changing nature of capital accumulation was also therefore responsible for stimulating the demand for private security. The fourth explanation, known as the mass private property thesis, further develops the theme of capital accumulation. It revolves around three observations made

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by Shearing and Stenning (1981, 1983) during the same period of time. First, it is becoming increasingly common for new forms of private property to assume key features of public space. Shopping malls, industrial complexes, gated communities and leisure parks, for instance, are privately owned but openly accessible to the general public in a similar way to city centres. Second, the owners of these new forms of property have the lawful power to shape the behaviour of individuals on their land through (reasonable and proportionate) private means, just as one does inside a private household. Third, this right creates a latent demand for private security which can quickly be actualised if owners are dissatisfed with the willingness and ability of the police to maintain social order in line with their personal preferences – a common scenario given that these preferences often prioritise capital accumulation (such as facilitating private consumption) rather than public order (maintaining peaceable relations among citizens). These observations lead Shearing and Stenning (1981, p. 228) to conclude that ‘whenever one fnds a shift in property relations toward such large geographically connected holdings of mass private property one also fnds a shift toward private policing initiatives’. The ffth explanation, known as the formalisation of social control, was put forward by Jones and Newburn (2002) as a geographical corrective to the mass private property thesis. While acknowledging the importance of this thesis in understanding the growing demand for private security, they contend that it has more analytical purchase in North America than the UK, where shopping malls and the like are less common. To account for demand in the UK, they use census data to highlight a signifcant postwar decline in those occupations performing ‘secondary’ (or informal) social control functions, such as caretakers, ticket inspectors and bus conductors, which have either lost their function or fallen prey to labour-saving technologies such as ticket machines. This process of economic rationalisation, they continue, has exacerbated the scale of the previously mentioned security vacuum, in turn accelerating demand for ‘primary’ (or formal) social control occupations such as police offcers and private security (Jones and Newburn 2002, pp. 141–142). Given the resource limitations of the increasingly embattled and tax-funded police, the private sector inevitably picks up a substantial proportion of this demand. The sixth explanation concerns the ascendancy of public sector outsourcing – an explanation which, it is important to note, also brings into view the privatisation of criminal justice when defned in more exacting terms. In many ways, this explanation follows on from the frst. The fscal crisis of the state not only prompted public spending cuts and caps, but also opened up a political opportunity for successive (neoliberal) governments to orchestrate an ideologically driven transfer of service provision from the (supposedly overly bureaucratic) public sector to the (allegedly more fexible and dynamic) private sector. This involved, among other things, state institutions entering into contractual relations with the private sector in an effort to generate cost and effciency savings (see Hood 1991) – a process which created a demand for private security within the public sector itself. Due to a dearth of available data, the precise scale of this demand is not known, yet it is possible to delineate a growing trend from the 1980s onwards. Interestingly, the

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earliest instances come not from the Home Offce but the Ministry of Defence (MoD), which increasingly relied upon private security to protect bases and munitions stores. MoD private security contracts rose 10-fold during the 1980s, from £461,000 in 1984–85 to £4,418,000 in 1989–90 (HC 171, 1989–90, p. xi). This trend continued to spread across the public sector during the 1990s, with the Home Offce increasingly stepping into the fold. Following a survey of government departments, non-ministerial departments and public sector agencies, Button and George (2001, p. 62) estimate that in 1994–95 the incumbent Conservative government spent approximately £338 million on private security and a further £50 million on private sector detention services such as prisons and escorts. In a startling example of this growing appetite, two decades later the Home Affairs Committee found that one private security company alone – G4S – held contracts with the Home Offce and police worth £585.2 million (HC 397-I, 2012–13, p. 3). This fgure comprises the infamous £229 million contract with Lincolnshire Police to deliver 18 service areas – including frontline roles in the control room, custody suites and police station front-counters – over a 10-year period (White 2014). In short, this explanation illustrates how demand for private security came to originate not just from the private sector, but the public sector too. Taking stock, the frst fve explanations concerning the rising demand for private security – namely, the fscal crisis of the state, escalating crime and fear of crime, the proliferation of transnational corporations, the emergence of mass private property and the formalisation of crime control – help us to understand in different but complementary ways the privatisation of criminal justice when defned in least exacting terms. By isolating various sources of demand for private security in the postwar era they provide a window into the rebalancing of the public/private divide across the criminal justice landscape. The sixth explanation – the ascendency of public sector outsourcing – continues this line of enquiry but, at the same time, brings into frame the privatisation of criminal justice when defned in most exacting terms. It points not only the rebalancing of the public/private divide across the criminal justice landscape, but also the specifc transfer of criminal justice infrastructure and services from the public to the private sector. The next section examines how the private security industry has gone about satisfying this demand.

Supply In response to rising demand during the postwar era, the private security industry has developed a range of services for consumption in the marketplace, in the process moving from the margins to the centre of the criminal justice landscape. This section examines these supply side patterns, frst examining questions of size, function and structure, before moving onto issues of power and legitimacy. It then closes with some refections on what these patterns suggest about the relationship between private security and the privatisation of criminal justice when defned in most exacting and least exacting terms.

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It is diffcult to depict the precise size of the private security industry in the postwar era for the simple reason that in the decades following World War II no-one was keeping a close count – a blind-spot which in itself says something about relative insignifcance of the industry at the time. Jones and Newburn (2002, p. 141) use the ‘security guards and related’ category of the census as a proxy for size, noting how the number of individuals listed in this category increased from 66,950 in 1951 to 159,704 in 1991. However, it is important to caveat these numbers by emphasising that the 1951 census category of ‘security occupations’ included those working as tidesmen, signalmen, meteorological reporters, park rangers and coast guards, to name but a few (General Register Offce 1956, p. 111). So it is impossible to determine how many of these individuals actually worked in the private security industry. While other estimates are available for these decades they often differ wildly and fail to inspire confdence (see Brodeur 2010, p. 269). In truth, it was not until the industry was regulated by the state following the Private Security Industry Act (PSIA) 2001 that a reliable picture started to emerge. According to the resulting offcial statistics, on 1 April 2019 (the most recent data at the time of writing) there were 341,725 licensed individuals working in the UK industry.1 Although once again a caveat is needed because not all parts of the industry are covered by this legislation – a point expanded upon shortly in our discussion of structure. Caveats aside, though, it is safe to conclude that the industry expanded substantially in the postwar era in response to the rising demand for private security, to the point where its workforce now completely overshadows UK police offcer numbers which at the present time stand at approximately 153,141.2 To understand the structure of the industry, it is necessary to begin with the distinction between ‘contract’ and ‘in-house’ private security. Contract private security refers to the procurement of security services from companies which specialise in security provision. In-house private security relates to the internal delivery of security services by organisations which do not specialise in security provision. Generally speaking, far more is known about the contract than the in-house side. This is for two reasons. First, the contract side has to make itself knowable in order to advertise its services to potential clients, whereas the in-house side is for the most part an internal organisational matter (though for a window into these internal matters see Walby and Lippert 2014). Second, in a legislative twist which continues to provoke controversy today, the PSIA 2001 includes contract private security offcers in all licensable roles, but covers in-house private security offcers in door supervision and vehicle immobilisation roles only. This serves to further hide the already obscured in-house side from public view and – returning to an earlier point – means that a sizeable proportion of in-house private security is actually missing from the supposedly reliable offcial workforce data cited earlier. Focusing for a moment on the more knowable contract side, through a constant process of merger and acquisition during its postwar expansion, this part of the industry has come to be dominated by a small number of huge companies. As Table 9.1 shows, just two companies – G4S and Mitie, both now household names (though not necessarily for the right reasons) – make up approximately 41% of the market in terms

Private security and privatisation 133 TABLE 9.1

Rank

Top 10 UK Private Security Companies by Market Share3

Company Name

2018 Turnover

Estimated Market Share

1

G4S Plc

£784,000,000

22.56%

2

Mitie Total Security Management (VSG)

£650,000,000

18.71%

3

Securitas Security Services Ltd

£264,000,000

7.60%

4

Interserve Plc (First Security [Guards] & Knightsbridge)

£135,000,000

3.89%

4

Ultimate Security (Noonan)

£135,000,000

3.89%

4

OCS Group UK Ltd

£135,000,000

3.89%

7

Loomis UK Ltd

£122,000,000

3.51%

8

Wilson James Ltd

£111,000,000

3.19%

9

TSS (Total Security Services)

£103,000,000

2.96%

Cordant Security

£101,000,000

2.91%

10

of value. Given that there are an estimated 4,000 private security companies in the UK (Booth 2019), this large ‘head’ is followed by a very long thin ‘tail’ comprising small – often sole trader – enterprises. As the industry expanded it also took on more and more functions. In the immediate postwar era its main business was straightforward guarding services. In 1945, for instance, Night Guards – which would soon after become Securicor and then the ‘S’ in G4S – employed only two security guards who patrolled their clients’ premises on bicycles (South 1988, p. 21). Moving forward half a century, the individuals who fall within the purview of the PSIA 2001 are broken down into seven licensable areas: cash and valuables in transit (7,423 licences), close protection (14,285 licences), door supervision (246,782 licences), key holding (848 licences), public space surveillance (49,364 licences), security guarding (67,402 licences) and vehicle immobilisation (18 licences).4 However, even these categories do not do justice to the industry’s widening functional scope. For example, the British Security Industry Association – the main trade association in the sector – divides its membership into many more areas including: access and asset protection, asset and property marking, cash and valuables in transit, crowd management, export, information destruction, security equipment distribution, security equipment manufacture, security guarding, security systems, training, vacant property protection and video surveillance.5 Each of these areas is then further subdivided into numerous more specifc areas. In other words, the industry has become highly versatile in response to the increasingly complex nature of the demand for private security. In perhaps one of the most striking observations on the industry’s functional scope, Stenning (2000, p. 328) remarks how ‘it is now almost impossible to identify any function or responsibility of the public police which is not, somewhere and under some circumstances, assumed and performed by private police in democratic societies’. So not only are there more than twice

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as many private security offcers as there are police offcers, but (at minimum) they perform a comparable range of functions. However, the manner in which private security offcers perform these functions is different from their public sector counterparts because, among other things, they do not have the same legal powers. The most important contrast is that as a general rule private security offcers are not endowed with the warranted powers conferred upon sworn police offcers – they only have access to ordinary citizen powers. The one exception here is the Community Safety Accreditation Scheme, which allows Chief Constables to delegate selected warranted powers to private actors under the Police Reform Act 2002 – though this Scheme has failed to take off in a meaningful way (White 2010, p. 149). Yet it is important to acknowledge that ordinary citizen powers can be quite far reaching, especially in the hands of private security offcers. While most citizens are rarely called upon to operationalise their universal power to arrest or to use reasonable force to prevent a crime, private security offcers are. This is because they are commonly stationed in close proximity to crime and disorder hotspots where they are expected to exercise these powers. Furthermore, as Button (2003) observes, when these offcers are located in shopping malls, industrial complexes, leisure parks and other forms of mass private property they have at their disposal additional powers associated with private property, such as the power to search and exclude entrance to private property, to enforce conditions on private property and to remove from private property. So although private security offcers are not endowed with the same legal powers as police offcers, they still have a considerable legal toolkit with which to undertake their functions. Of course, in many if not most instances, police offcers do not in fact deploy their warranted legal powers to bring about a resolution, they instead use their symbolic power. While the police institution was controversial when it was established during the 19th century, through complementary processes of professionalisation and democratisation it steadily won approval among many parts of the population, to the extent that by the mid-20th century it was, according to Reiner (2000, p. 48), ‘not merely accepted but lionized by the broad spectrum of opinion. In no other country has the police force been so much a symbol of national pride’. Its standing has certainly diminished in the postwar era due to a seemingly never-ending series of scandals and misconduct cases, yet the institution – along with the inclusive, egalitarian principles it stands for – still occupies a privileged position in the popular consciousness (Loader 1997). Its representatives are therefore able to use this symbolic power to ‘police by consent’ – that is, to persuade citizens to voluntarily comply with their requests without exercising any warranted legal powers whatsoever. The private security industry, by contrast, does not enjoy this cultural standing, primarily because it challenges the ideal of security as a public good which – in tandem with the professionalisation and democratisation of the police – has come to represent a cornerstone of modern liberal democratic politics (Abrahamsen and Williams 2011, pp. 111–113). It is consequently viewed by many citizens as a kind of ‘tainted trade’ (Thumala et al. 2011). Lacking intrinsic symbolic power,

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the industry has sought to appropriate this important resource from select public sector institutions. This strategy has included, among other things, recruiting former police offcers, outftting private security offcers in mock police uniforms, deploying these offcers in copycat police cars, and lobbying the government for statutory regulation so that these offcers can be provided with Home Offce–issued licences (White 2010, 2012). The cumulative effect of these measures is that they allow private security offcers to present themselves not as market actors but as state-deputised actors operating in line with the population’s state-centric expectations about how security ought to be delivered. This presentational sleight of hand has two important consequences. First, it gives private security offcers a degree of symbolic power to ‘police by consent’ in a similar(ish) manner to their public sector counterparts. Second, it helps private security executives to open up market opportunities by enhancing the public images and practices of the industry (White 2010, 2012). In sum, this discussion of supply further develops our understanding of the relationship between private security and the privatisation of criminal justice. In least exacting terms, it illustrates how over the postwar era there has been a substantial swing from the public to the private sector when it comes to street-level security provision. The private security industry has travelled from the margins to the centre of the criminal justice landscape where it eclipses the police in workforce size, is dominated by large companies and performs a similar range of functions. Yet, at the same time, it is important to stress that private security offcers have less legal and symbolic power than their public sector counterparts, which in turn diminishes their ability to make decisive interventions in the production and maintenance of social order – though the powers they do have should not be underestimated. In most exacting terms, the direct transfer of criminal justice infrastructure and services from the public to the private sector involves, by defnition, the contract rather than the in-house side of the industry and again tends to be dominated by large companies such as G4S which counts public sector outsourcing as one of its primary income streams. Furthermore, it is important to emphasise that these companies place high priority on public sector contracts not just because of the income it generates, but also because of the symbolic power it confers upon their operations. The Lincolnshire Police-G4S Strategic Partnership, for instance, has blurred the line between the public and private sectors in a manner which is highly advantageous to the legitimacy-seeking private security industry (and arguably disadvantageous to the legitimacy-holding police). The next section further explores this increasingly nebulous public/private divide through a discussion of regulation.

Regulation There are a variety of regulatory mechanisms which shape the behaviour of the private security industry through the setting, monitoring and enforcement of rules. Sometimes these mechanisms are animated by private interests, sometimes by the public interest. This section surveys those mechanisms which mostly clearly shape

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the behaviour of the industry in line with the public interest because these have the greatest bearing on our discussion of the public/private divide in the criminal justice landscape. These public interest mechanisms can be divided into two broad types: those approaching private security just like any other industry such as criminal and civil law; and those approaching private security as an industry which plays a central and controversial role in a foundational area of public service provision, such as critical public discourse and statutory regulation. This section surveys these different regulatory mechanisms, before considering what they reveal about the relationship between private security and the privatisation of criminal justice. Just like any other industry, private security is held to account through criminal law, which is designed to serve the public interest as a whole. Systematic evidence on the criminal offences committed within the industry is scarce. However, one valuable source is the Home Affairs Committee’s 1995 enquiry into the private security industry – still the only one of its kind. In its written submission to the enquiry, the Association of Chief Police Offcers (ACPO) documented how 130 private security employees committed 249 criminal offences in Lancashire Constabulary during a 21-month period in 1993–94. It estimated the local workforce to be 4,500 individuals and, on this basis, calculated a local offending rate 21 times greater than the police force and 6 times greater than the postal service and, when scaled up, indicated a national offending rate of roughly 2,600 offences per annum within the industry. It also noted how offences in Lancashire and other constabularies included: murder, assault, theft, perjury, perverting the course of justice and wasting police time (HC 17-II, 1994–95, pp. 103–105). While these data are now over two decades old, they serve to illustrate the basic yet important point that the private security industry – like any other – is held to account through the criminal law. Again, just like any other industry, private security is also held to account through civil law. While civil law in the frst instance serves the interests of individuals and organisations rather than the public as a whole, there is one notable exception which holds important implications for the present discussion – namely, contract law where the contract holder is a public criminal justice institution and the contractor is a private security company. In these instances, the contract regulates the company in line with a set of key performance indicators (KPI) which have been designed to meet the publicly defned needs of the criminal justice system. An example of this mechanism in action comes from the aforementioned Lincolnshire Police-G4S Strategic Partnership. To make cost and effciency savings, G4S replaced control room switchboard operators with interactive voice response technology to answer incoming calls from the public. However, this technology failed to process enough calls to meet the relevant KPI in the contract. As such, G4S were required to employ more switchboard operators than anticipated at its own cost in order to satisfy this KPI – or expressed differently they were forced to prioritise the needs of the public over their proft margins as a consequence of their contractual obligations to Lincolnshire Police (White 2014). That said, it is important to remember that in this scenario the status of the contract holder is the key variable aligning private security

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with the public interest – contract law itself approaches the private security industry just like any other. By contrast, the next two regulatory mechanisms – critical public discourse and statutory regulation – view the industry differently. It has already been mentioned how many citizens feel anxious about the challenge the industry represents to the ideal of security as a public good. Private security is not just like any other industry, so the logic goes, because it brings principles of excludability, inequality and proft maximisation into a foundational area of public service provision. This view unsurprisingly has given rise to a specifc critical public discourse which is articulated through two main outlets. The frst is the news media, which has always been eager to channel this latent anxiety into sensationalist reporting. Livingstone and Hart (2003), for instance, point to three pejorative stereotypes which repeatedly feature in news media: the incompetent ‘watchman’; the cheating and villainous ‘gangster’ and the amoral ‘hired gun’. The second is parliamentary debate, which has also consistently given voice to this anxiety. Following the (admittedly rather spectacular) failure by G4S to satisfy the conditions of its London 2012 Olympics security contract, for instance, the Home Affairs Committee subjected the company’s CEO to a kind of rhetorical public hanging, highlighting in graphic terms the many ways in which his company failed the public (White 2016, pp. 181–185). This critical public discourse has played an important role in shaping industry behaviour. Indeed, there is perhaps no better example than the various legitimation strategies alluded to earlier, which illustrate how industry executives are keen to placate the anxiety expressed through this discourse by cultivating more attractive state-like sets of images and practices. This discourse has also elicited a state response in the form of statutory regulation – the other specifcally targeted regulatory mechanism. In the immediate postwar decades, pressure for the introduction of statutory regulation came from two sources: parliamentary reformers who wanted to more rigorously orientate the industry’s (controversial) operations in line with the public interest; and the executives of large private security companies who sought both to enhance the industry’s symbolic power and to push smaller companies out of the market by raising entry barriers (White 2010; Smith and White 2014). However, successive governments resisted these calls, frst (during the welfare state era) because they were wary of conferring symbolic power on the industry, and subsequently (during the early neoliberal era) because they did not want to burden the free market with bureaucratic constraints. It was not until the late 1990s that New Labour fnally backed the policy following the logic that a regulated – and by extension more trustworthy and respected – industry could play a meaningful role in its partnership approach to combatting crime and disorder (White 2010). New Labour duly guided the PSIA 2001 into the statute books. This legislation provided for the establishment of the Security Industry Authority – a public agency accountable to the Home Offce tasked with regulating the UK private security industry. To do this, the SIA is empowered to licence individual private security offcers in line with ‘ft and proper’ person criteria and training requirements. If an individual is found working in a licensable role without a valid licence both the individual

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and employing company may be subject to a range of punishments set out in criminal law. The SIA is also empowered to accredit companies which voluntarily meet certain standards of delivery. While these mechanisms have certainly improved the professionalism and reputation of the industry to a degree (White 2015), they remain relatively light touch. Button and Stiernstedt (2018), for instance, ranked the statutory regulation of private security in 26 European Union countries according to various measures of rigour and placed the SIA regime in 20th position. As such, discussion about how to better align private security with the public interest unsurprisingly continues unabated (Loader and White 2017, 2018). Pulling these threads together, the different regulatory mechanisms which shape the industry in line with the public interest offer further insights into the relationship between private security and the privatisation of criminal justice. With regard to the least exacting defnition, they illustrate how the broad postwar shift from the public to the private sphere in the criminal justice landscape has not been a clean-cut one. There are a variety of mechanisms which anchor the private security industry in the public interest, some general in orientation (such as criminal and civil law), others much more specifcally targeted (such as critical public discourse and statutory regulation). Indeed, it could even be contended that this shift is in fact better characterised as a blurring of the public and private sectors. This is particularly so when it comes to the most exacting defnition. For here the private security industry is not only aligned with the public interest at more macro level through criminal law, critical public discourse and statutory regulation, but also at a far more micro level through KPIs drawn up by public criminal justice institutions.

Conclusion The preceding discussion facilitates a multidimensional understanding of the relationship between private security and the privatisation of criminal justice. When privatisation is considered in least exacting terms to mean broad shifts between the public and private sectors over the longue durée, the history of private security is intrinsic to the privatisation of criminal justice. During the postwar era, demand for private security originated from a variety of sources across the public and private sectors, bringing into effect an industry which today eclipses the police in size and performs a similar array of functions. At the same time, though, its workforce holds less legal and symbolic power than the police and it is anchored to the public interest through a range of regulatory mechanisms including criminal law, civil law, critical public discourse and statutory instruments. So while the expansion of private security certainly entails a substantial rebalancing of the public/private divide across the criminal justice landscape, the extent to which this rebalancing should be regarded as a unidirectional shift or a complex blurring is very much a matter for debate. When privatisation is approached in most exacting terms to mean a direct transfer of criminal justice infrastructure and services from the public to the private sector, the history of private security is independent of but overlaps with the

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privatisation of criminal justice. These overlaps occur within the context of public sector outsourcing deals – that is, when criminal justice institutions enter into contractual arrangements with large contract private security companies to deliver specifc services for a precise period of time. Importantly, the blurring of the public/private is particularly acute within these deals. Not only do they augment the (state-centric) symbolic power of the industry to a signifcant degree, but they also mobilise an especially wide range of regulatory mechanisms designed to align private security with the public interest. This means that the point at which the public sector ends and the private begins is extraordinarily diffcult, if not impossible, to discern. Regardless of how privatisation is defned, though, it is clear that the supply, demand and regulation of private security in the postwar era is central to understanding the privatisation of criminal justice.

Notes 1 www.sia.homeoffice.gov.uk/Pages/licensing-stats.aspx. 2 This figure was arrived at by combining the latest police officer numbers in England and Wales (122,395 on 1 September 2018), Scotland (17,147 on 30 September 2018) and Northern Ireland (13,599 on 1 April 2019). Because of the slight deviation in dates, these figures must be treated as approximate as of 1 April 2019. 3 www.infologue.com/news/infologue-com-top-30-uk-companies-in-the-regulatedsecurity-sector-2018/. 4 www.sia.homeoffice.gov.uk/Pages/licensing-stats.aspx. Note: the number of licences (394,267) is greater than the number of licenced individuals (341,725) because some individuals hold multiple licences. 5 www.bsia.co.uk/sections.aspx.

Bibliography Abrahamsen, R. and Williams, M. (2011) Security Beyond the State: Private Security in International Politics (Cambridge: Cambridge University Press). Anderson, S. and Cavanagh, J. (2000) Top 200: The Rise of Global Corporate Power (Washington: Institute for Policy Studies). Booth, S. (2019) The Post-Crisis Regulation of the UK Private Security Industry: Crisis, Autonomy and Reform (Unpublished PhD, University of York). Braithwaite, J. (2000) ‘The New Regulatory State and the Transformation of Criminology’, in Garland, D. and Sparks, R. (eds) Criminology and Social Theory (Oxford: Oxford University Press), 47–69. Brodeur, J.-P. (2010) The Policing Web (Oxford: Oxford University Press). Button, M. (2003) ‘Private Security and the Policing of Quasi-Public Space’, International Journal of the Sociology of Law 31(3): 227–237. Button, M. and George, B. (2001) ‘Government Regulation in the United Kingdom Private Security Industry: The Myth of Non-Regulation’, Security Journal 14(1): 55–66. Button, M. and Stiernstedt, P. (2018) ‘Comparing Private Security Regulation in the European Union’, Policing and Society 28(4): 398–414. Churchill, D. (2016) ‘Security and Visions of the Criminal: Technology, Professional Criminality and Social Change in Victorian and Edwardian Britain’, British Journal of Criminology 56(5): 857–876.

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General Register Offce (1956) Census 1951, Classifcation of Occupations (London: HMSO). HC 171 (1989–90) Sixth Report from the House of Commons Defence Committee: The Physical Security of Military Installations in the United Kingdom (London: HMSO). HC 17-II (1994–95) First Report of the House of Commons Home Affairs Committee: The Private Security Industry (London: HMSO). HC 397-I (2012–13) Olympics Security (London: TSO). Hood, C. (1991) ‘A Public Management For All Season?’, Public Administration 69(1): 3–19. Jones, T. and Newburn, T. (1998) Private Security and Public Policing (Oxford: Clarendon Press). Jones, T. and Newburn, T. (2002) ‘The Transformation of Policing? Understanding Current Trends in Policing Systems’, British Journal of Criminology 42(1), 129–146. King, A. (1975) ‘Overload: Problems of Governing in the 1970s’, Political Studies 23(2): 284–296. Livingstone, K. and Hart, J. (2003) ‘The Wrong Arm of the Law? Public Images of Private Security’, Policing and Society 13(2): 159–170. Loader, I. (1997) ‘Policing and the Social: Questions of Symbolic Power’, The British Journal of Sociology 48(1): 1–18. Loader, I. and White, A. (2017) ‘How Can We Better Align Private Security with the Public Interest? Towards a Civilizing Model of Regulation’, Regulation & Governance 11(2): 166–184. Loader, I. and White, A. (2018) ‘Valour for Money? Contested Commodifcation in the Market for Security’, British Journal of Criminology 58(6): 1401–1419. Maguire, M. (2007) ‘Crime Data and Statistics’, in Maguire, M., Morgan, R. and Reiner, R. (eds.) The Oxford Handbook of Criminology (Oxford: Oxford University Press, 2007), 241–301. Reiner, R. (2000) The Politics of the Police (Oxford: Oxford University Press, 3rd edition). Reiner, R. (2007) Law and Order: An Honest Citizen’s Guide to Crime and Control (Cambridge: Polity Press). Shearing, C. and Stenning, P. (1981) ‘Modern Private Security: Its Growth and Implications’, Crime and Justice 3: 193–245. Shearing, C. and Stenning, P. (1983) ‘Private Security – Implications for Social Control’, Social Problems 30(5): 493–506. Smith, M. and White, A. (2014) ‘The Paradox of Security Regulation: Public Protection versus Normative Legitimation’, Policy & Politics 42(3): 421–437. South, N. (1988) Policing For Proft: The Private Security Sector (London: Sage). Spitzer, S. and Scull, A. (1977) ‘Privatization and Capitalist Development: The Case of the Private Police’, Social Problems 25(1): 18–29. Stenning, P. (2000) ‘Powers and Accountability of Private Police’, European Journal on Criminal Policy and Research 8(3): 325–352. Thumala, A., Goold, B. and Loader, I. (2011) ‘A Tainted Trade? Moral Ambivalence and Legitimation Work in the Private Security Industry’, British Journal of Sociology 62(2): 283–303. Walby, K. and Lippert, R. (eds.) (2014) Corporate Security in the 21st Century: Theory and Practice in International Perspective (Basingstoke: Palgrave). White, A. (2010) The Politics of Private Security: Regulation, Reform and Re-Legitimation (Basingstoke: Palgrave). White, A. (2012) ‘The Political Economy of Private Security’, Theoretical Criminology 16(1): 85–101. White, A. (2014) ‘Post-Crisis Policing and Public-Private Partnerships: The Case of Lincolnshire Police and G4S’, British Journal of Criminology 54(6): 1002–1022.

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White, A. (2015) ‘The Impact of the Private Security Industry Act 2001’, Security Journal 28(4): 425–442. White, A. (2016) ‘Private Security and the Politics of Accountability’, in Lister, S. and Rowe, M. (eds.) Accountability of Policing (London: Routledge), 172–191. White, A. (2018) ‘What is the Privatization of Policing’, Policing: A Journal of Policy and Practice, doi:10.1093/police/pay085 Zedner, L. (2003) ‘Too Much Security?’, International Journal of the Sociology of Law 31: 155–184.

10 PRIVATISATION, MARKETISATION AND THE PENAL VOLUNTARY SECTOR Mike Maguire

Introduction This chapter explores experiences of voluntary sector organisations (VSOs) in relation to the privatisation or outsourcing of elements of the criminal justice and penal systems, itself part of the broader pattern of marketisation of public service delivery increasingly evident since the 1990s (Evans et al., 2005; Corcoran, 2011; Rees and Mullins, 2017; Corcoran and Philips, 2020). At the extreme, this includes situations where VSOs have bid to manage or co-manage privatised mainstream services. The most obvious example is the Transforming Rehabilitation (TR) initiative, in which a number of large VSOs competed for contracts to set up ‘Community Rehabilitation Companies’ (CRCs) to provide core probation services – including full responsibility for the delivery of court sentences – for low- and medium-risk offenders (Ministry of Justice, 2013; Webster, chapter 7 this volume). However, only one of the 21 successful ‘primes’ (the Durham Tees Valley consortium) was a not-for-proft organisation. An earlier example was an unsuccessful bid by Nacro to co-manage a private prison in partnership with G4S (Neilson, 2009). Despite these attempts to play a leading role, third sector involvement in privatised areas of the criminal justice feld has generally been as a junior partner or subcontractor in a private company’s ‘supply chain’ (Maguire, 2016; HM Inspectorate of Probation, 2018). At the same time, in areas still managed by the public sector, VSOs quite frequently bid to provide a range of ‘outsourced’ services, particularly specialist welfare and rehabilitative interventions for convicted offenders such as substance misuse treatment, mentoring, and employment or housing advice. As will be discussed, contracts to deliver these have become increasingly prescriptive, more closely monitored and allocated through more formal processes of competitive commissioning (or ‘procurement’). It will be shown here that involvement in either privatised or outsourced service provision can have a signifcant impact on the fnances, scale of operation,

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management, staffng, working practices and/or values and traditions, of individual VSOs. This impact can be positive, negative or mixed, and can vary from year to year as different kinds of contracts are won or lost. It can also have an effect on relationships between VSOs, and between them and other organisations and local communities. Indeed, it will be argued that in the longer term it may affect the identity and reputation of the voluntary sector as a whole – most likely, in a negative direction. To illustrate these points, I shall draw upon data from a research project (known as the ‘Resilience’ project) undertaken between 2015 and 2017, in which the evolving role of the third sector in criminal justice services was explored, mainly through interviews with over 200 stakeholders including managers and staff of VSOs, policy-makers, commissioners and members of public and private partner organisations (Corcoran et al., 2017, 2018, 2019; Maguire et al., 2019) To put recent developments in a broader context, the chapter begins with a brief historical perspective on the changing involvement of the voluntary sector in the world of criminal justice, with a particular focus on the growing marketisation of related services from the 1990s onwards. Findings from the Resilience project and other studies are then used to explore some of the current and possible future consequences of this for individual VSOs, focusing particularly on impacts such as pressure to take on unfamiliar types of work or cover new geographical areas; changes in relationships with other VSOs, including threats from large ‘predatory’ competitors; changes in organisational structures, cultures and ethos; and changes in working practices and relationships with clients. Finally, possible broader, less tangible and longer-term impacts are considered, with a central focus on issues around the ‘identity’ of the sector.

A historical perspective The voluntary sector has played a part in criminal justice for many years, although its prominence has waxed and waned, while the nature of VSOs’ relationships with statutory agencies and processes varies widely and has also changed considerably over time. This involvement has covered most areas of the feld, including policing and the courts, but its most common contribution has been through work with convicted offenders – on community sentences, in prison, or ‘through the gate’. Most of the focus of this chapter will be on this area of work, and particularly on those VSOs that are contracted to provide ‘rehabilitative services’, although it is important to remember that many others stand in a more distant, critical or adversarial relationship with criminal justice agencies, campaigning for change or acting as supporters or advocates of individuals who come into confict with them. As is well known, the practice of ‘supervising’ offenders in the community developed in both the USA and Britain during the second half of the 19th century, as various voluntary and religious groups, including the Church of England Temperance Society, persuaded magistrates to place convicted offenders under their care rather than send them to prison (Jarvis, 1972; Vanstone, 2004; Nellis, 2007). Others

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met released prisoners at the prison gate and offered them food, shelter and support in return for a pledge to stay out of trouble and avoid alcohol. Although supervision, both as an alternative to custody and (much later on) as a condition of early release, was eventually placed on a statutory footing and taken over by the Probation Service, VSOs have continued to provide a variety of services to convicted offenders. Much of this work has been in the area of ‘through the gate’ or post-custody resettlement, in which the involvement of probation was for many years relatively limited. Parole for adult prisoners – discretionary early release on licence with compulsory supervision – was not introduced until 1969, was used sparingly and did not apply to short-termers, meaning that the great majority of prisoners left custody with no assistance, support or control from statutory agencies. Most probation areas offered some form of ‘voluntary aftercare’ to those who asked for it, but this was under-resourced and was anyway largely abandoned after 1984, when it was excluded from a key statement of national priorities for the service (Home Offce, 1984; Maguire et al., 2000). The introduction of Automatic Conditional Release in 1992 increased the volume of prisoners subject to statutory post-release supervision (Maguire and Raynor, 1997), but this still did not apply to the large numbers sentenced to under 12 months. The voluntary sector remained for a further 20 years the only source of help available to the latter, and such help was usually given quite independently of the Probation Service. An important feature of the role of VSOs during most of the 20th century was that the services they offered to offenders, in prison or in the community, were funded mainly through grants from charitable trusts, donations from benefactors or the public and so on. Funding from criminal justice sources to pay VSOs to ‘deliver’ specifed services was much less common. Moreover, as in many other felds of charitable work, the services offered were generally designed by the VSO and delivered in ways it felt most appropriate, rather than conforming to guidelines set by funders or statutory agencies. However, during the 1990s, things began to change. In line with broader moves by the Conservative government to challenge the ‘monopolistic’ position of public sector agencies and to promote greater marketisation of public services – which included the introduction of the frst private prisons – policies were introduced to encourage the commodifcation and outsourcing of elements of probation work. Initially, this was undertaken cautiously and on a small scale. In 1990 the government published two important discussion papers which emphasised the benefts of involving other agencies more closely in probation work – in particular, the introduction of ‘innovative’ approaches, fexibility, specialist interventions and costeffectiveness (Home Offce, 1990a, 1990b). The papers were largely couched in the softer language of ‘partnership’ rather than that of ‘outsourcing’ or ‘subcontracting’, and referred as much to the voluntary as to the private sector, under the general label of ‘independent sector’, but the basic message was clear enough: Probation officers must see themselves less as exclusive providers of services and facilities, and more as managers of supervision programmes. They must

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make greater use of the skills and experience of the voluntary and private sectors. (Home Offce, 1990b: iii) Subsequently, local probation committees were directed to spend a minimum proportion of their budget (initially 5% and eventually 7%) on such ‘partnership’ work. In practice, most of this was given in grants to local VSOs to provide specifc kinds of welfare or rehabilitative services – commonly in the housing and substance misuse felds – to ex-prisoners or offenders on community orders. The contracts they were given (often with little competition) tended to be loose and only lightly monitored (Nellis, 1995). Even so, this can be seen as an important early step in the development of the formal ‘customer-provider’ contractual relationships which have since come to characterise the delivery of rehabilitative services. During the 2000s, under New Labour, the outsourcing of delivery of elements of public services continued apace, mainly through formal processes of competitive commissioning. Considerable importance was attached to encouraging the voluntary sector (increasingly referred to as the ‘third sector’) to play a meaningful part, accompanied by much rhetoric about the advantages that this could bring: numerous offcial publications referred to its ‘transformative’ potential, its ‘innovative’ approaches, its skills in ‘engaging’ offenders, its roots in local communities and so on (Cabinet Offce, 2007; Public Administration Select Committee, 2008; see also Etherington, 2006; Maguire, 2012; Rochester, 2013). Several initiatives were also introduced to assist VSOs to compete for contracts as far as possible ‘on a level playing feld’ with private companies. These included the establishment of the ‘Offce of the Third Sector’ within the Cabinet Offce, training and advice programmes, and the provision of capacity-building funds such as Futurebuilders (2008) to help improve their infrastructure. Government interest – rhetorically, at least – in promoting and enhancing the role of the voluntary sector in public service delivery continued under the Coalition and (to a lesser extent) Conservative governments, although this has increasingly been regarded as subsidiary to that of the private sector. Such interest was prominent initially in the prime minister’s enthusiasm for the ‘Big Society’ concept (Morgan, 2012) and subsequently in the arguments put forward in support of the Transforming Rehabilitation (TR) initiative. The vision promoted was that VSOs would play a major part in TR, including managing some of the new CRCs and supervising convicted offenders, bringing to the table their traditional skills in building relationships and developing innovative practice (Ministry of Justice, 2013). However, as noted in the introduction, the outcome of the tendering process was that nearly all CRCs were to be led by private sector ‘primes’, with VSOs subcontracted as second- (or more often, third-) tier providers in their ‘supply chain’. Moreover, most CRCs found themselves unable to afford to pay VSOs to undertake more than a small proportion of the work with offenders, keeping much of it ‘in-house’ (HM Inspectorate of Probation, 2018). This, combined with the large numbers of shortterm prisoners added to the total supervision caseload1, meant that overburdened

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probation staff were generally unable to provide more than a minimal service, while the relatively few subcontracted VSOs, often mired in process-driven demands, were given little opportunity to demonstrate the ‘people skills’ and innovation that had been promised (House of Commons Justice Committee, 2018; NAO, 2019; HM Inspectorate of Probation, 2019). In the face of the accumulation of evidence of failure, the government eventually announced in May 2019 that the experiment with probation privatisation would end and the service would be returned to public ownership.

Impact of marketisation on VSOs It is against this background that we can now explore the views and experiences of CEOs and staff of VSOs, as expressed in interviews conducted as part of the Resilience project referred to earlier. The frst point to emphasise is that there was widespread agreement that the overall fnancial situation in the voluntary sector had become more precarious over the past decade. This was put down primarily to ‘austerity’, which had led to signifcant reductions in available funds to bid for, as well as increased competition to obtain them. Frequently mentioned were discretionary grants from local authorities, which were said to have suffered major cuts. Charitable trusts were also said to be providing fewer grants for work with offenders, partly because they felt that more of this burden should now be borne by the privatised CRCs. As a result, many VSOs had been drawn more often (or for the frst time) into the world of competitive tendering for ‘outsourced’ public services. Moreover, several of those whose CEOs we interviewed had participated as junior partners in bids led by private companies – both as part of the TR initiative and for other large-scale contracts. This situation had a number of consequences for individual VSOs. Among those described by interviewees were: having to take on unfamiliar kinds of work; extension of operations into new (and often larger) geographic areas; changed relationships with other VSOs; the need to make signifcant internal organisational and staffng changes; threats to the traditional culture and values of their organisation and muting of its critical voice. Most regarded these as undesirable outcomes, but there were also voices that welcomed some of them, especially among those whose organisation had generally been a ‘winner’ in the market. Some respondents also expressed concerns about broader and longer-term impacts on the identity, ethos, reputation or independence of the voluntary sector collectively. More detailed comments are made about these consequences in the three following sections.

New kids on the block? Unfamiliar work, new areas, changed relationships Many VSOs begin life with a clear set of aims, usually refecting the interests and values of the people who set them up, and over time build up expertise in a particular kind of work. As far as possible, their managers and boards proactively seek

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funding to allow them to continue similar work. However, the growth of competitive commissioning, combined with reductions in funding opportunities, have meant that VSOs increasingly feel under pressure to ‘chase the money’, bidding for contracts for a much wider range of activities, including some in which they have little expertise or experience. In doing so, they not only risk losing sight of their core focus (including core values, as will be discussed later), but may also – at least in the short term – perform below the standards they have achieved in the kinds of work with which they are familiar. This may have a negative effect not only on their clients, but on other VSOs, and on their own reputation and status. We found examples of innovative services that had been developed by a local VSO over a period of years, assisted partly by discretionary grants from the National Offender Management Service (NOMS, now renamed HMPPS), only for a decision to be made by the latter to adopt the service and put it out to tender – resulting in the contract being awarded to another organisation. In one such case, the ‘winner’ had won the contract largely on cost grounds, but it later transpired that – having had little experience of running services in the specialism in question – it had underestimated the level of resources needed. After struggling for some time to deliver what it had promised, it eventually withdrew from the contract. A number of people paid a considerable price: most importantly, some vulnerable clients whose trusting relationships with key workers in the original VSO were disrupted or ended. In addition, some staff resigned, while others were transferred (under TUPE regulations)2 to the new organisation, only to lose their jobs when the contract was terminated early; the original VSO not only lost revenue, but no payment was made for ‘intellectual property’ or to recompense it for the years of work put into developing the intervention; and the ‘successful’ VSO suffered signifcant damage to its reputation, both with other VSOs and with local commissioners. Such situations were said by senior managers, especially those who had worked in the voluntary sector for several years, to have contributed to a signifcant deterioration in relationships between VSOs – manifested in some cases in open hostility, but more often in general wariness and a reluctance to share information or refer clients to each other. For example: Partners suddenly become competitors . . . the relationships with other VSOs have got worse. They’re more competitive and less ready to work together unless they are formal partners . . . some VSOs want all the money and so they protect information and use any information you share. (CEO, offender support) In the case described here, the successful bidder was a medium-sized and fairly long-established charity, which had felt compelled to expand into an unfamiliar feld in the face of fnancial pressures. As such, its actions were regarded locally as regrettable, but understandable – an unpalatable ‘fact of life’ in the competitive marketplace that increasingly governed the options open to all VSOs.

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However, what many interviewees saw as much less acceptable – and indeed as a threat to the health of the sector – was what was sometimes referred to as the systematic ‘hoovering up’ of contracts in a ‘predatory’ fashion by large organisations – some of them quite newly formed – operating on a regional or national basis. Questions were raised as to whether these merited the label of ‘charity’ or ‘voluntary agency’: they were perhaps better described as ‘social businesses’, their behaviour and business models being seen as more typical of the private sector. Such organisations often employed professional bid-writers and had enough fnancial reserves to underbid smaller VSOs, which placed them in a strong position to win contracts even when they had no experience or expertise in the work being put out to tender. Apart from concerns about smaller organisations missing out on important funding, interviewees expressed two main worries about this phenomenon: frstly, that such organisations often had no local connections, which made collaboration with community organisations and other welfare agencies in the area problematic; and secondly, that some did not embrace (except in rhetoric) the ‘traditional’ values and working practices of the voluntary sector or the importance of building trusting relationships with individual clients: The Commissioners are allowing them to parachute in. So, for example, [social business] never had a presence in the drug and alcohol field, or very small. But then they won the whole contract for X City. And so, whilst they keep the same staff through TUPE, their main driver for the first year is to get those staff inducted into their business way. Now some of those things may be very, very good, but if you’re not careful, you lose the local knowledge, or the local knowledge is not attended to. (Manager, housing charity) The previous comment highlights another important trend, that towards the commissioning of services covering larger geographical areas than in the past – for example, a whole city, county or region rather than a single town. In addition to facilitating the dominance of the large ‘predatory’ organisations, such funding calls were having an important effect on small and medium-sized VSOs. In order to be able to make competitive bids, some had expanded their operations into new parts of the country, which could involve them in the considerable expense of opening new branch offces and hiring new staff, to some extent ‘on spec’. More commonly, pairs or groups of VSOs from more than one area either formed partnerships or consortia to enable joint bidding for large contracts, or in some cases had engaged in full mergers or ‘take-overs’. While this course of action was said to have worked well and to mutual advantage in some cases, in others it had led to disagreements and rifts. Importantly, too, it had resulted in smaller VSOs becoming more distant from the local communities in which they had previously been well embedded.

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Changes in organisational structures, cultures and working practices As described previously, the marketisation of criminal justice and penal services has had a considerable impact on different VSOs’ opportunities to obtain funding, on the kinds of services they offer and on their relationships with each other and with local communities. Interviewees also described a number of effects on the internal practices and cultures of their own organisations. Firstly, partly in order to handle the more complex processes that arise when bidding for or delivering government contracts, as well as to convince commissioners of their ‘professionalism’, many had signifcantly enhanced their business systems in recent years, for example by employing more specialist offce staff in areas such as fnance, HR and IT, investing in management training and achieving recognised quality standards. Although senior managers generally agreed that this had improved their organisational effciency, it had added signifcantly to running costs, making them more vulnerable to the risk of losing a major contract (and with it overheads essential to maintaining core management processes). Secondly, it was said that the need to ‘deliver to contract’ could create unnecessary bureaucratic demands. Some said that their organisation was becoming more ‘corporatised’, gradually adopting more ‘managerialist’ routines with an excessive focus on ‘box ticking’, which could undermine staff ’s engagement with service users. For example: I feel it’s becoming quite corporate. And I’ve noticed that change also in offender services, particularly since TR. . . . Suddenly it’s about business. . . . I think the client can be lost. (Manager, resettlement service) In particular, many interviewees from VSOs identifed a general rise in the intensity of monitoring by contract managers, both in criminal justice agencies and ‘primes’, who asked at regular intervals for detailed records of activities and outcomes. This was not only regarded as time-consuming and expensive to collect, but much of the data was felt to be hollow and misleading in terms of refecting the reality of their work and its impact. A typical comment was: We’re working as a subcontractor . . . the day to day operations are affected because we’re regularly inspected. . . . We spend too much time on keeping records and sharing records with the bigger organisation. (CEO, medium-sized housing and support VSO) Moreover, target numbers of clients or interactions were often very challenging, resulting in pressure to ‘process’ cases effciently, sometimes at the expense of spending insuffcient time with individuals, in order to meet contract requirements:

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Because of the way commissioning has evolved over recent years, I think there are incredible constraints really. Probably the best example I could give of that is that when I set up complex needs resettlement at the young offenders’ prison, I was given a totally open remit. I was told, [you have] ‘small caseloads, complex needs, so do whatever you need to do to make this work’. I didn’t have to work with more than 12 people at any one time. I could see people every day. I could spend six months getting to know someone. That doesn’t happen anymore. (Manager, resettlement service) Targets need to be set based on the realism of our model, not based on a need to impress the donor, if you see what I mean. (Director, small VSO) While such comments might be written off as the kinds of complaints about excessive workloads made by staff in many kinds of organisations,they refect fundamental concerns about pressures on VSOs to move away from what is seen by many as one of the core defning characteristics (and strengths) of the sector – a fexible, ‘client centred’ (or ‘client led’), individualised mode of working with people, aimed at developing close and trusting relationships and empowering them to make decisions. The fear was that they were increasingly being pressed into replacing this with a routinised ‘one size fts all’ approach. These conficting views about effective working practices refect to some extent deeper ideological and cultural differences between the private and voluntary sectors. Such differences are by no means clear-cut, and it would be wrong to over-generalise. However, at the most simplistic level, VSOs registered as charities have a duty to operate broadly in tune with their offcial ‘charitable aims’ – often couched in terms of improving the well-being of individuals – and many of those employed by them (or helping as volunteers) would claim that their work is primarily ‘value-driven’ (Kendall and Knapp, 1996). By contrast, while many directors and employees in the private sector can also justifably claim to bring strong values to their work, most private companies exist ultimately to make a proft. It was clear from our interviews that private sector managers generally placed high priority on operating cost-effectively and on fulflling the formal requirements of contracts: meeting output targets, achieving specifed outcomes, returning statistics on time and in the format specifed and so on. This was particularly evident in situations involving some form of ‘payment by results’ (Fox and Albertson, 2011). A salient example of the practical consequences of such a clash of views and values was found in the case of a private sector led consortium, including a VSO which specialised in drug treatment, which won a contract to deliver statutory substance misuse services to offenders. The implementation of these services was dogged by frequent battles of will between senior managers of the private company and the VSO about how staff should relate to, and organise contacts with, offenders. The former insisted that they should ‘process’ service users quickly and effciently,

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using a strict offce appointment system with minimum and maximum amounts of time and sanctions for being late, as well as completing and submitting records of meetings immediately. The latter encouraged them to operate much more fexible arrangements, spending as much time with each individual as considered appropriate to their needs and wishes (including encouraging them to ‘drop in’ in crises), and being more lenient when appointments were missed. A senior manager from the VSO expressed concern that staff used to working in ‘traditional’ voluntary sector ways were talking about leaving and were likely to be replaced by people without this background who would be trained (or ‘socialised’) into a working culture that she considered lacking in empathy and unlikely to genuinely engage service users.

Broader and longer-term impact on the sector The consequences of the marketisation of rehabilitative work with offenders have so far been discussed mainly in terms of its impact on individual VSOs. For many of these, it has brought increased fnancial insecurity and unpredictability, rapid organisational change and pressure to take on unfamiliar tasks or to modify or abandon preferred working practices. It is however important to recognise that there have been both ‘winners’ and ‘losers’ in this process, and that some have fourished in the more competitive environment, securing contracts that have enhanced their reputation and consolidated their fnancial stability (Corcoran et al., 2020). Moreover, if one takes a long view, it is possible that the severe shortage of available funds which has blighted recent years will ease and that, while there will have been a signifcant ‘shake out’ of individual organisations, others will take their place and thrive, thereby maintaining the overall health of the sector. It is therefore important when discussing the impact of marketisation to look beyond the immediate and to consider what, if any, are its likely long-term and lasting impacts on the voluntary sector as a whole. The focus here remains on what is sometimes referred to as the ‘penal voluntary sector’ – VSOs that work partly or wholly with offenders – but much of what will be said applies more widely. The general view among CEOs and other senior managers we interviewed was that, while the issues referred to earlier in the chapter were causing signifcant problems for many VSOs, efforts were being made to handle them and their overall effect was not as yet gravely damaging to the sector: the voluntary sector was resilient and adaptable and had a long history of overcoming challenges without losing its special qualities. Most of the serious concerns expressed related to its longer-term future, which it was thought could be quite profoundly affected, albeit in relatively intangible ways, by gradual, cumulative change. These can be broadly characterised as concerns about potential threats to core elements of its ‘identity’ – both how it sees itself and how it is seen by others. In particular, reference was made to threats to its ‘ethos’, its reputation and its independence. These are now discussed in more detail. First of all, it is a complex question whether the ‘voluntary sector’ can be regarded as a clearly defnable entity with its own distinct character (or identity) and purpose. On the one hand, many commentators have emphasised the huge variety in

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scale, aims, philosophies, values, organisational structures and sources of income to be found among agencies which are referred to under the label (MacMillan, 2010; Mills et al., 2011; Tomczak, 2014). It is also often used to include social enterprises (which may or may not be registered charities), community interest companies and other ‘not for proft’ quasi-businesses alongside registered charities and volunteerrun community groups. This underlines the importance of avoiding the creation of stereotypical or over-romanticised images of the sector. Nevertheless, as discussed earlier, there are strong cultural, intellectual and practice traditions associated with it, and it was evident to us from hours of observation and interviews in numerous VSOs that many of those who had chosen to work in the sector shared a broad set of beliefs and principles which they felt were refected to some extent in a recognisable voluntary sector ‘philosophy’ or ‘ethos’: one in which aims such as empowering and improving the lives of disadvantaged people are considered paramount, and the work undertaken should be ‘value-led’ and ‘client-centred’. It is this distinctive character of the sector that several interviewees felt could be undermined in the longer term. As noted earlier, the growth of competitive commissioning has meant that VSOs are increasingly being used as agents to deliver commoditised ‘packages’ of services in a standardised way, as specifed in tight contracts backed up by close monitoring of performance. As a result, it was said, the way they undertook such work was gradually becoming less clearly distinguishable from how it would be approached by either a private or public sector provider. Indeed, it can even be argued that, for all the rhetoric about the special qualities that the voluntary sector could bring to criminal justice services, government initiatives aimed at making VSOs more ‘business-like’ and market-oriented in order to compete for contracts ‘on a level playing feld’ with private companies have contributed to this blurring of distinctions between the sectors. This process has been amplifed, too, by the trend towards letting contracts over much larger geographical areas, which has accelerated the dominance of larger charities and social businesses, often working closely with private companies. To improve their chances of success in the market, such organisations tend to establish more corporate structures and to appoint CEOs or other senior managers (often on high salaries) with a background in the commercial world, who are not necessarily steeped in the values and traditions of the voluntary sector. One mildly amusing, but telling, illustration of this was related to us as follows: At a recent awayday with the managers, none of the managers could actually remember what the [organisation’s] principles were – this is front of the Director as well! (Middle manager, housing support) The type of staff appointed, too, may change, with higher priority given to formal qualifcations and offce skills than to ability to relate to clients. While they may increase organisational effciency, such changes can be at the expense of fexibility, individualised approaches and client engagement, and over time can contribute to a

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gradual transformation in the overall ethos and ‘identity’ of the organisation, marked by increasingly market-oriented thinking and behaviour. Indeed, some commentators have argued that we are already seeing the emergence of new ‘hybrid’ forms of organisation, which have little in common with smaller and more ‘traditional’ charities (Corcoran and Fox, 2013). The fear is that, over time, there will be a cumulative effect across the whole sector. As one CEO put it: Because, you know, voluntary sector organisations will either lose their values and people focus, and just become businesses or subcontractors to private companies, or you’ll be in the church hall dishing out the soup. Because we want to make a difference. (CEO, homelessness VSO) A related element of what many still regard as the core identity of the voluntary sector is its close links with local communities. When grant-based funding was the norm, many such VSOs continued to provide similar services in the same locations for years, in the course of which they developed close relationships with local residents, groups and organisations. In many cases, they had developed their own models of intervention, and grants to implement them were renewed repeatedly with little competition. Alternatively, they were able to obtain funding from new sources to continue the same work. However, with the reduction in grant funding and the shift to competitive commissioning, delivery by the same provider for long periods in the same area has become much less common. At the same time, the increase in mergers, consortia and take-overs, combined with individual VSOs’ willingness to bid for work across a wider range of services and geographic areas, has resulted in a general, albeit gradual, weakening of these local links. The loss of personal contacts in the area can make it less easy, for example, to refer clients between agencies, or to help fnd them jobs with local employers. Staff are also less likely to have a close understanding of problems in the area, to become familiar faces to residents, or to get to know local individuals or families well – key factors in the image of charities in the eyes of service users and critical to gaining the trust of the more ‘diffcult to reach’ (one of the skills for which VSOs have a strong reputation). While the issues discussed previously are relevant right across the voluntary sector, a further potential threat to core identity can be identifed which is specifc to that part of it which works with offenders – the so-called penal voluntary sector. This is what may be referred to as ‘penal drift’ – defned by Maguire et al. (2019) as the ‘diffusion of criminal justice related values, practices and dispositions into the sphere of voluntary sector organisations’. The expansion of privatisation and outsourcing of services or interventions which entail compulsory attendance or compliance with conditions by convicted offenders – common under ‘TR’ – has put increasing numbers of VSOs in the position of having to report those who break the rules to their offender manager, with the possible outcome of a return to court or prison. More subtly, frequent work in close association with criminal justice or penal agencies can gradually pull VSO staff into ways of thinking, speaking

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and writing in which clients’ identity as ‘offenders’ becomes as salient as that of ‘disadvantaged people’, and as much attention begins to be given to assessing their risk or efforts to reduce their re-offending as to improving their general well-being. This kind of change can be fuelled by contracts in which the main – or even the only – targets set by commissioners involve the achievement of criminal justice rather than welfare goals (again, particularly common in work under TR, where the reduction of re-offending is the main trigger for ‘payment by results’). While, again, most interviewees saw ‘penal drift’ as an issue which could currently be dealt with careful management, it was quite widely recognised as a long-term threat to traditional voluntary sector values, particularly if VSOs became more directly involved in the delivery of court sentences (Maguire et al., 2019). For example: Inevitably if you get linked with authority in the sense that, ‘you mustn’t do this or I’ll report it’, or even worse, you actually get to almost do the breaching yourself. You’re not in the CRC but some voluntary agencies are becoming more like probation, actually, and ultimately they could be given power over people. And that ultimately could undermine the basis of voluntary work, which is, it is voluntary, it’s open, it’s trusting and all the great things about the voluntary sector. (Middle manager, substance misuse service) The potential threats identifed in relation to changes in organisational culture and ethos, local links and penal drift all have implications not just for the self-identity of the voluntary sector, but also for its external reputation. This includes how it is viewed not only by politicians, funders and commissioners, but by the general public and by service users. In some cases, these different audiences may have conficting views of what are desirable and undesirable directions for the sector to take. For example, commissioners responsible for outsourcing public services may welcome moves towards ‘scaling up’ and more ‘market-oriented’ and ‘corporate’ styles of working, while service users and other members of deprived communities may experience them as impersonal and unhelpful – leading in the longer term to a loss of trust and willingness to engage. Ultimately, however, the most important aspect of the sector’s reputation may be how it is viewed by the general public. Recent years have seen serious blows to the image of some of the major national and international charities caused by, among others, fnancial and sexual scandals, aggressive fund-raising and revelations of excessive executive salaries. These have had an impact on the volume of public donations, as well as undermining confdence in the sector more generally. The penal voluntary sector has so far largely escaped negative publicity, although the same cannot be said of some of the private companies which have won major government outsourcing contracts in the penal feld (for example, for the delivery of electronic monitoring). However, there is a continuing risk that VSOs which become closely involved in risk management and the delivery of punishment will at some point make a serious mistake and suffer adverse media and public reactions. More generally, the perception may grow over

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time that in taking on contracts to deliver public services they are acting more as an arm of government or the penal system – what Wolch (1990) famously characterised as ‘the shadow state’ – than as charities. Such a view may already be refected in the reduced willingness of charitable trusts to fund VSOs for work with offenders, due to the sector’s signifcant involvement in TR supply chains (Maguire, 2016). A fnal concern which was quite widely expressed was that the sector could gradually lose its independence and the ‘critical voice’ which this allows. Several interviewees referred to a number of recent moves to restrict the rights of charities to speak out against government policy or its effects, most obviously the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act (2014), which restricted charities’ permitted level of expenditure on campaigning during election periods, and the plan announced by the Cabinet Offce in 2016 (but withdrawn after protests) to insert an ‘anti-lobbying clause’ in all government contracts, which would have prohibited VSOs from using ‘taxpayer funds’ to engage in public advocacy or advertising. In addition, reference was made to an ‘insidious’ growth in the practice of inserting confdentiality or non-disclosure clauses – widely referred to as ‘gagging clauses’ – into service contracts. Some VSOs had refused to sign such agreements. For example, one CEO stated: And that was the other reason really that we wouldn’t take this contract because there is effectively a gagging order in the ISPA [Industry Standard Partnership Agreement] that says if you sign the contract, you can’t say that it’s not good. And that’s not good! How can you advocate for the women and their rights and their needs, if you can’t speak your mind . . . it’s a complete threat to an independent charity. (CEO, women’s sector) However, a more common reaction was that, if a particular issue arose which they felt it important to ‘speak out’ about, they would do so, if perhaps in a circumspect way, despite the clause. Once again, as with the other concerns discussed earlier, the general feeling of CEOs seemed to be that at present the sector was handling threats to its independence fairly successfully, but the long-term risks in this respect were quite serious. To fnish on a somewhat less pessimistic note, Tomczak (2014, 2016) argues that marketisation and neoliberalism may be less damaging to the sector than many have argued. She rightly points out that small and locally based charities still make up the majority of VSOs (see Cabinet Offce, 2010) and that a high proportion continue to survive through creative fund-raising and the work of dedicated individuals without getting involved in bids for the kinds of contract discussed here, thereby keeping the traditional voluntary ethos – and its critical voice – very much alive. Even so, the worry still remains that, as it is generally the larger organisations that are the best resourced and have the highest public profle and most infuence with government, the market-oriented priorities and cultures that they increasingly embody may in the longer term come to dominate the identity of the sector, at least in the

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eyes of the public, drowning out more favourable perceptions. Alternatively, the gap between the ‘super-charities’ and small, local voluntary and community organisations may widen even further, perhaps leading to the two ends of the spectrum being seen as quite separate kinds of creature.

Notes 1 The Offender Rehabilitation Act 2014 extended compulsory post-release supervision to virtually all prisoners, however short their sentence. 2 Transfer of Undertakings (Protection of Employment) regulations, which safeguard employees’ jobs for a minimum period when contracts are transferred to a new provider.

Bibliography Cabinet Offce. (2007) The Future Role of the Third Sector in Social and Economic Regeneration: Final Report. London: Cabinet Offce. Cabinet Offce. (2010) National Survey of Charities and Social Enterprises. London: Cabinet Offce. Corcoran, M. (2011) ‘Dilemmas of Institutionalisation of the Penal Voluntary Sector in England and Wales.’ Critical Social Policy, 31(1), 30–52. Corcoran, M. and Fox, C. (2013) ‘A Seamless Partnership? Developing Mixed Economy Interventions in a Non-custodial Project for Women.’ Criminology & Criminal Justice, 13(3), 336–353. Corcoran, M., Maguire, M. and Williams, K. (2019) ‘Alice in Wonderland: Voluntary Sector Organisations’ Experiences of Transforming Rehabilitation.’ Probation Journal, 66(1). https://doi.org/10.1177%2F0264550518820118 Corcoran, M., Maguire, M. and Williams, K. (2020) ‘Constructive Ambiguity, Market Imaginaries and the Penal Voluntary Sector in England and Wales.’ In K. Albertson, M. Corcoran and J. Phillips, eds., Marketisation and Privatisation in Criminal Justice. Bristol: Policy Press. Corcoran, M., Williams, K., Prince, K. and Maguire, M. (2017) The Voluntary Sector in Criminal Justice: A Study of Adaptation and Resistance. Summary of Early Findings. Keele, Staffordshire: Keele University. Corcoran, M., Williams, K., Prince, K. and Maguire, M. (2018) ‘The Penal Voluntary Sector in England and Wales: Adaptation to Unsettlement and Austerity.’ The Political Quarterly, 89(2), 187–196. Etherington, S. (2006) ‘The Transformation of Public Services – The Voluntary and Community Sector and the Criminal Justice System.’ In N. Tarry, ed., Returning to Its Roots? A New Role for the Third Sector in Probation. London: Social Market Foundation. Evans, B., Richmond, T. and Shields, J. (2005) ‘Structuring Neoliberal Governance: The Nonproft Sector, Emerging New Modes of Control and the Marketisation of Service Delivery.’ Policy and Society, 24(1), 73–97. Fox, C. and Albertson, K. (2011) ‘Payment by Results and Social Impact Bonds in the Criminal Justice Sector: New Challenges for the Concept of Evidence-based Policy?’ Criminology & Criminal Justice, 11(5), 395–413. Futurebuilders. (2008) Investment Plan 2008–2011. London: Futurebuilders England Ltd. HM Inspectorate of Probation. (2018) Probation Supply Chains: A Thematic Inspection. London: HM Inspectorate of Probation.

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HM Inspectorate of Probation. (2019) Post-release Supervision for Short-term Prisoners: The Work Undertaken by Community Rehabilitation Companies. London: HM Inspectorate of Probation. Home Offce. (1984) Probation Service in England and Wales: Statement of National Objectives and Priorities. London: Home Offce. Home Offce. (1990a) Partnership in Dealing With Offenders in the Community. London: Home Offce. Home Offce. (1990b) Supervision and Punishment in the Community. London: Home Offce. House of Commons Justice Committee. (2018) Transforming Rehabilitation. HC 482. London: House of Commons. Jarvis, F.V. (1972) Advise, Assist and Befriend: The History of the Probation Service. London: NAPO. Kendall, J. and Knapp, M. (1996) The Voluntary Sector in the UK. Manchester: Manchester University Press. Macmillan, R. (2010) The Third Sector Delivering Public Services: An Evidence Review. Briefng Paper 20. Birmingham University: Third Sector Research Centre. Maguire, M. (2012) ‘Big Society, the Voluntary Sector and the Marketization of Criminal Justice.’ Criminology and Criminal Justice, 12(5), 483–494. Maguire, M. (2016) ‘Third Tier in the Supply Chain? Voluntary Agencies and the Commissioning of Criminal Justice Services.’ In A. Hucklesby and M. Corcoran, eds., The Voluntary Sector and Criminal Justice. London: Palgrave Macmillan. Maguire, M. and Raynor, P. (1997) ‘The Revival of Throughcare: Rhetoric and Reality in Automatic Conditional Release.’ British Journal of Criminology, 37(1), 1–14. Maguire, M., Raynor, P., Vanstone, M. and Kynch, J. (2000) ‘Voluntary After-Care and the Probation Service: A Case of Diminishing Responsibility.’ Howard Journal of Criminal Justice, 39, 234–248. Maguire, M., Williams, K. and Corcoran, M. (2019) ‘“Penal Drift” and the Voluntary Sector.’ Howard Journal, 58(3), 430–449. Mills, A., Meek, R. and Gojkovic, D. (2011) ‘Exploring the Relationship Between the Voluntary Sector and the State in Criminal Justice.’ Voluntary Sector Review, 2(2), 193–211. Ministry of Justice. (2013) Transforming Rehabilitation: A Strategy for Reform. London: Ministry of Justice. Morgan, R. (2012) ‘Crime and Justice in the “Big Society”.’ Criminology and Criminal Justice, 12(5), 463–481. NAO. (2019) Transforming Rehabilitation: Progress Review. London: National Audit Offce. Neilson, A. (2009) ‘A Crisis of Identity: Nacro’s Bid to Run a Prison and What It Means for the Voluntary Sector.’ Howard Journal, 48(4), 401–410. Nellis, M. (1995) ‘Probation Partnerships, Voluntary Action and Community Justice.’ Social Policy and Administration, 29(2), 91–109. Nellis, M. (2007) ‘Humanising Justice: The English Probation Service up to 1972.’ In L. Gelsthorpe and R. Morgan, eds., Handbook of Probation. Devon: Willan. Public Administration Select Committee. (2008) Public Services and the Third Sector: Rhetoric and Reality. London: House of Commons. Rees, J. and Mullins, D. (2017) The Third Sector Delivering Public Services: Developments, Innovations and Challenges. Bristol: Policy Press. Rochester, C. (2013). Rediscovering Voluntary Action. Basingstoke: Palgrave Macmillan. Tomczak, P. (2014) ‘The Penal Voluntary Sector in England and Wales: Beyond Neoliberalism?’ Criminology and Criminal Justice, 14(4), 470–486. Tomczak, P. (2016) The Penal Voluntary Sector. London: Routledge.

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Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Act. (2014) http://www.legislation.gov.uk/ukpga/2014/4/contents/enacted Vanstone, M. (2004) Supervising Offenders in the Community: A History of Probation Theory and Practice. Aldershot: Ashgate. Wolch, J. (1990) The Shadow State: Government and Voluntary Sector in Transition. New York: The Foundation Center.

11 CONTRACTS, COMPLIANCE, CARE AND CONTROL The experience of privatisation in one probation trust Martin Graham

Introduction Much of what has been written about Transforming Rehabilitation has been from a national and external perspective. This chapter explores the experience of privatisation from the perspective of a Chief Offcer operating at a national level whilst also seeking to steer their Probation Trust through to signifcantly new structural arrangements. It does not, and cannot, cover what happened in other CRCs but provides some thoughts as to why Transforming Rehabilitation was so problematical to implement and pointers as to where more positive results might have been achieved had things been done differently. It also looks at the four concepts of contracts, compliance, care and control and considers how Probation’s understanding of these has changed over the years. So what, if anything, would these terms have meant to probation practitioners and managers of 40 years or more ago?

Contracts Probably the only contract that probation staff, trained primarily in social work, would recognise was that between their “clients” and the Courts, represented by the Probation Order. This was not a sentence. Instead, offenders consented to whatever activities or work the writer of a Social Inquiry Report had proposed. They were then “on probation”, required to prove themselves and only subject to some form of punishment if they were returned to court for failing to keep their part of the contract.

Compliance Probation Offcers used a wide range of techniques and skills to encourage and enable their probationers to achieve what they had agreed to. Failure to do this would result in various warnings and changes of approach as the Probation Offcer

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gained a better understanding of each individual. The fnal resort was to return the offender to court for being in breach of the order. Prior to the introduction of strict National Standards in 19921 the decision to breach was based on both the individual needs of each offender and the attitude of the Probation Offcer. This of course led to very inconsistent practice in relation to breach and was behind the introduction of a very infexible National Standard which allowed virtually no discretion to the Probation Offcer. However, the best offcers used breach primarily, both before and after National Standards, as a way of securing compliance with the order.

Care In the days when Probation Offcers required a social work qualifcation, the ethos of the service across all grades was very much one of care and concern for the welfare of those under supervision. Whilst this included the concept of “rehabilitation” it went much wider than that, particularly as Government policies resulted in rising unemployment and attacks on welfare benefts and offenders were increasingly excluded from the means to secure a reasonable standard of living for themselves and their families without resorting to crime.

Control Most Probation Offcers would have balked at any suggestion that they had a responsibility to control offenders. Even with the extension of Parole resulting in an increasing number of more serious and potentially high-risk offenders being supervised, offcers were still confdent that their skill base was suffcient to help reintegrate parolees back into society, with the threat of recall being their tool of last resort in securing compliance.

Background The Probation Service has a long and proud history stretching back over 100 years. During this time it has been required to take on many new and varied responsibilities within its overall remit for the supervision, management and rehabilitation of offenders. These have often been accompanied by major re-structurings of the service, resulting in a gradual shift of emphasis for Probation away from its original role to “advise, assist and befriend”2 offenders to an approach which has increasingly been seen by practitioners as more about public protection, the assessment and management of risk, surveillance and control than rehabilitation.

Transforming rehabilitation – the proposals On 9 January 2013 Chris Grayling, the Secretary of State for Justice, published a consultation paper on radical proposals to deliver “real reform of the criminal justice system to tackle the unacceptable cycle of reoffending”.3 The immediate

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concerns expressed were that the consultation period was only six weeks (to 22 February 2013), shorter than would normally be the case in respect of such fundamental proposals. Nevertheless, 598 formal responses were received4 from a wide range of organisations, groups and individuals with many expressing serious reservations and concerns about aspects of the proposals which would need to be addressed if the reforms were to succeed. On 9 May 2013, the Government published its response to the consultation in a White Paper “Transforming Rehabilitation: A Strategy for Reform”. This document set out the Government’s plans for “a programme of reform that offers a step change in the way we rehabilitate offenders, and will lead to year-on-year reductions in reoffending”.5 The Ministerial Foreword stated that: there were important areas of consensus in the response to our recent consultation on “Transforming Rehabilitation”: • •

• • •

offenders need to be supported “through the prison gate”, providing consistency between custody and community; those released from short-sentences, who currently do not get support, need rehabilitation if we are to bring their prolific reoffending under control; public protection is paramount, and the public sector must take the key role in keeping people safe; the voluntary sector has an important contribution to make in mentoring and turning offenders’ lives around; nothing we do will work unless it is rooted in local partnerships and brings together the full range of support, be it in housing, employment advice, drug treatment or mental health services.6

It would, of course, have been diffcult for anyone in the Probation Service to disagree with these principles. The issue for most people was the method by which these were proposed to be delivered. The irony of the announcement of the Transforming Rehabilitation proposals in 2013 was that there seemed to be a new emphasis on rehabilitation, particularly for short-term prisoners serving less than 12 months who had not previously benefted from any statutory supervision by Probation. In order to deliver this, however, the vehicle proposed by the Secretary of State for Justice, Chris Grayling, was the radical separation of Probation into two separate organisational arrangements: a National Probation Service (NPS), remaining in the public sector, who would manage high-risk offenders and 21 Community Rehabilitation Companies (CRCs) who would manage all other offenders. These CRCs would be contracted out to other providers through a national competitive tendering exercise. For the CRCs, this arrangement could only succeed if there was a robust contract management system in place. The creation of this would, it is argued, always add signifcant extra costs to the system, money which, in an age of Government

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austerity, would be taken away from frontline services, putting at risk the whole of the more laudable aims of Transforming Rehabilitation and challenging the level of savings that the whole programme would achieve. At a national level, the Secretary of State met very quickly with Chief Offcers to outline his proposals. Not surprisingly Chief Offcers focused on the potential pitfalls of the proposals but this was interpreted as being an example of Chief Offcers only being interested in preserving the status quo. One Chief Offcer famously challenged the Secretary of State observing starkly that if the programme went ahead as proposed, then people would die. This was regarded by the Secretary of State as emotionalism, although the statistics over ensuing years for Serious Further Offences committed by offenders under Probation supervision would seem to suggest that the Chief Offcer had a point. James Grierson, Home Affairs Correspondent for the Guardian newspaper, wrote in October 2018 that “there were 627 serious further offence (SFO) reviews conducted in 2017–18, a freedom of information request response disclosed, a 21% rise on the 517 in the previous 12-month period.”7 Although some rise was inevitable given the introduction of post-release supervision for short-term prisoners, there remain concerns that some of the rise was one of the unintended consequences of Transforming Rehabilitation. Over the next few months, Chief Offcers as a group, the Probation Chiefs’ Association, the Probation Association (representing the Boards of the existing Probation Trusts) and the three main Probation Trade Unions (Napo, Unison and GMB SCOOP) continued to seek to have a dialogue with the Secretary of State and the senior civil servants tasked with delivering Transforming Rehabilitation who were either moved over from other government departments or recruited into specifc roles. All these Probation groupings were, in their various ways, seeking to assist the Secretary of State to deliver his proposals as effectively as possible, but equally were not willing to ignore or downplay what might be signifcant diffculties. One change between the original consultation and the decision document which was welcomed by Norfolk and Suffolk Probation Trust was a change to the proposed Contract Package Areas (CPAs). Originally Norfolk and Suffolk were to be subsumed within a greater East Anglia CPA. Following the consultation Norfolk and Suffolk retained its own identity. Given the amount of work which had been involved in merging Norfolk and Suffolk Probation Areas in 2010 into a single Trust, this came as a considerable relief. Merger had involved not just changing and harmonising numerous different practical arrangements and systems but also addressing cultural differences between the two areas. This did not augur well for CPAs such as Bedfordshire, Essex, Northamptonshire and Cambridgeshire which had the nightmare scenario of merging four Probation Trusts whilst simultaneously dividing them into the NPS and a single CRC. In order to start to manage the transition locally within Norfolk and Suffolk Probation Trust, the Chief Offcer embarked on a series of staff briefngs about what the fnal proposals were and what the implications of these were for both service delivery and staff themselves. A fundamental problem with such briefngs, no doubt replicated across the country, was for the Chief Offcer to persuade staff of

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the benefts of the proposed changes whilst personally holding considerable reservations about much of the detail. One potential positive was that, with Norfolk and Suffolk being the smallest CPA, it was felt that this may make it more likely that in the competition it would be particularly attractive to the voluntary sector.

The competition Launching the competition for bidders for the CRCs in September 2013, the Secretary of State for Justice stated that “The scale of interest in these contracts from so many diverse and creative organisations is extremely encouraging. This is great news for the public who will fnally beneft from the best of the private and voluntary sectors, working together with the public sector, to cut reoffending.”8 The press release stressed the importance of the voluntary sector and public service mutuals participating in the competition, including some partnership arrangements involving existing Probation Trusts. This commitment was widely welcomed, but in reality proved to be little more than political rhetoric as many such providers eventually had to withdraw from the competition as they could not demonstrate the additional fnancial backing required to guarantee the organisation in the event of unforeseen circumstances or reduced income due to not meeting payment by results or other contractual targets. Norfolk and Suffolk Probation Trust was one of the probation organisations who seconded staff into a separate entity which was required to operate behind ethical walls. These staff worked with a local voluntary sector provider with signifcant experience of offender accommodation with a view to submitting a bid to deliver services in Norfolk and Suffolk. The principle of this initiative was well received by staff within the Trust who viewed such an arrangement as more ethically acceptable than the new CRC being owned by a private sector organisation whose priority, staff felt, would be to make a proft on behalf of their shareholders. Probation staff historically have been very much aligned to a public sector ethos and as a result most were implacably opposed to any sort of privatisation of their work. This was something which, it is argued, was often overlooked or minimised by politicians and the Ministry of Justice, yet it was an ongoing source of concern for local managers, not least because some staff, usually those with more experience, made personal decisions to seek employment in other parts of the public sector. The infrastructure for the competition included the creation by the Ministry of Justice of an electronic data room where large amounts of information were transferred about each Probation Trust in a CPA. It was not possible, however, for Probation Trusts to check the accuracy of this information as they were required to have in place an ethical walls structure which prevented any Probation Trust staff accessing competition information. There is reason to believe, however, that some of the information was either incorrect or at least provided assumptions for potential bidders to work on in their bids which Probation Trusts might well have challenged had they been able to check the information before it was submitted to the data room. Two examples which support this belief are provided next.

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Firstly, each Probation Trust had to submit HR information about its staff numbers, roles, grades, pay points etc. on a very regular basis. For a Probation Trust such as Norfolk and Suffolk, with a very small complement of HR staff, this was a very demanding piece of work on top of all the other HR-related work required in the Transforming Rehabilitation process. It subsequently transpired in discussions with the winning bidders for Norfolk and Suffolk CRC that their bid was based on much older staff data than had been submitted by the Probation Trust. This created signifcant problems in achieving the target staffng numbers required in due course, more of which is covered in the following. Secondly, the data room apparently provided information on predicted levels of new community orders and custodial sentences forecast over several years. This information was, of course, crucial for potential bidders as cases, particularly the requirements likely to be included in community orders, would be major factors in determining their potential income. It would seem, in retrospect, that these fgures were possibly over-optimistic. It had been apparent for some years that in most Probation Trusts caseloads had been falling. Although the Transforming Rehabilitation proposals for post-release supervision for prisoners serving under 12 months would add incrementally to caseloads this would not necessarily offset the year-on-year fall in community sentences. Had the Ministry of Justice consulted Probation Trusts about this, they may have produced more realistic forecasts. The effect of this second example was that much time in the early years of the CRCs was taken up with negotiations between the successful bidders and the Ministry of Justice about funding as the new providers were fnding it increasingly diffcult to deliver their bids given the threat to their income which falling caseloads represented. What could not have been included in the caseload forecasts, however, was any potential decline in community orders resulting from both sentencers’ attitude towards or experience of the new CRC arrangements and their view of the changes to community order requirements brought in by the Offender Rehabilitation Act 2014. Even if anyone at the Ministry of Justice actually recognised the possibility of this, they could not, of course, acknowledge it either publicly or in the information they provided to bidders as this would be politically unacceptable. Further comment on sentencers and Transforming Rehabilitation is provided later on. The results of the Transforming Rehabilitation competition were fnally announced in October 2014. For Norfolk and Suffolk, the news that its CPA had been awarded to Sodexo Justice Services in partnership with the National Association for the Care and Resettlement of Offenders (NACRO) came as a great disappointment to staff. This was not necessarily about Sodexo and NACRO themselves, although the word very quickly at grassroots level was that the CRC was going to be run by a “French catering company”, albeit one with some experience of running privatised prisons in the UK. The disappointment was more about the view that Norfolk and Suffolk might not have been particularly attractive to private companies who would be driven by shareholder expectations. As the smallest CPA in terms of caseload but one of the largest and most rural in terms of service

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delivery, there were perhaps greater risks for shareholders in terms of the CRC delivering payment by results. As a result, there had been increasing speculation that, if the Ministry of Justice were genuinely interested in the voluntary sector running a CRC, then Norfolk and Suffolk would seem an obvious possibility for this, not least because staff were aware that there was a voluntary sector bid which had been made in conjunction with a small group of local Probation Trust staff working behind ethical walls.

The transitionary period Once the Transforming Rehabilitation competition had been launched, Probation Trusts were required to transition swiftly towards the establishment of the new operating arrangements. This involved each CPA, by June 2014, separating itself into two distinct entities, transferring some staff and resources into the new National Probation Service (NPS) and the majority of staff and resources into each of the 21 CRCs. These would initially be maintained in the public sector and owned by the Secretary of State for Justice from June 2014 until being formally “sold” and transferred to the new owners with effect from February 2015. This was a major piece of restructuring conducted in a limited time period during which service delivery was expected to be maintained to a good quality. This was despite the backdrop of ongoing misgivings about and, at times, resistance to the whole Transforming Rehabilitation programme which was still being challenged by the respective probation organisations and trade unions. The dilemma for all was that the desire to complete the transition as smoothly as possible was signifcantly outweighed by the speed with which it was meant to happen which at the time, and indeed subsequently, was deemed to be completely unrealistic. Some support for this has been provided by the National Audit Offce in 20199 which commented “The Ministry set itself up to fail in how it approached the Transforming Rehabilitation reforms. Its rushed implementation introduced signifcant risks that its chosen commercial approach left it badly placed to manage.” Senior managers in Probation Trusts were inevitably struggling to balance the delivery of new infrastructures and the HR implications of transferring staff fairly into two new organisations, whilst seeking to maintain staff morale and the quality of the work they were being required to do. Locally in Norfolk and Suffolk, Sodexo with its NACRO partner embarked on a series of staff briefngs. These were initially well received. Staff, to their surprise, found that they could subscribe to the values espoused by Sodexo as an organisation. The proposed operating model made sense to staff, even though there were concerns about some of the longer-term plans such as biometric reporting kiosks. The prospect of moving to a new IT infrastructure, separate from the Ministry of Justice systems which had proved to be so problematic, was very attractive, particularly when it would include a new offender assessment and management system which was seen to have greater potential than the current OASys system.

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Externally, using presentation material designed by Sodexo, the Chief Offcer undertook a series of briefngs for key partners including the Norfolk and Suffolk Criminal Justice Board, Judges and Magistrates, local Safeguarding Children Boards and the Norfolk Community Partnership. Again, these briefngs were well received, although there remained for many partners serious reservations about how well the new arrangements would work. Sentencers in particular were very sensitive about the involvement of a private company in delivering court orders and how, if at all, sentencers could engage with the CRC as a private company which might be seen as promoting particular sentences based on their potential proftability. Another diffculty in this period, which could have been ameliorated if handled differently, was the failure to engage Chief Offcers and their management teams in the development of the fnal contracts. As a result, contracts sometimes failed to take account of local knowledge which these teams possessed which might have better informed the contract. One example for Norfolk and Suffolk for offenders living in remote, rural areas was the reality of travelling times, limited public transport and travelling costs. These are factors which the Ministry of Justice (and the Home Offce before them) had regularly under-estimated in terms of the impact on delivering Community Payback effciently or on the need for waiting lists before viable numbers for an accredited programme can be achieved. In Norfolk and Suffolk some offces covered hundreds of square miles of these counties with many offenders living in small hamlets and villages, often with access to public transport which only ran once a day or sometimes even once a week. Thus the logistical problems and costs involved in enabling offenders to access services or to carry out the requirements of their orders can be signifcantly greater than many urban areas where offenders can either walk to their local offce or at least have access to regular public transport. This failure by the Ministry of Justice was replicated in Norfolk and Suffolk’s case by Sodexo as they fnalised their sub-contracts for the delivery of services by third sector providers. The most glaring example of this was in relation to Through the Gate, the services to be delivered to short-term prisoners. This new provision was probably the only thing about Transforming Rehabilitation which had been universally welcomed. Sodexo seemed to be in a strong position to implement this given its strategic partnership with NACRO as all the prisons in Norfolk and Suffolk already had NACRO workers based in them. Despite this, Sodexo chose to sub-contract the service to St Giles Trust. Whilst this organisation had experience of delivering services covered by Through the Gate, the decision not to use NACRO had devastating consequences for the CRC. NACRO staff were transferred to St Giles under TUPE arrangements, but almost all subsequently left leaving St Giles having to recruit, induct and train new staff which clearly took several months. This situation was further compounded by the sub-contract allocating the same number of staff to each relevant prison in the two counties, when a simple discussion with the Chief Offcer would have made it clear that HMP Norwich would have the biggest demand for Through the Gate services as it was the local Resettlement Prison for Norfolk and Suffolk.

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These failures left the CRC signifcantly under-performing on Through the Gate to the extent that there was a serious risk of it being held to be in breach of contract. In addition, the situation caused signifcant strain on the relationship between the Governor at HMP Norwich, St Giles Trust and the CRC which was only ameliorated by the positive approach to the problems taken by the Governor and his team which helped in the resolution of some of the practical problems that St Giles were facing in the prison. One of the suggestions from the Ministry of Justice’s Contract Manager as to how the CRC could cover the shortage of staff in the prisons was to use the CRC’s own staff. This rather overlooked the fact that by this time (late 2015) the staffng complement in the CRC had been drastically reduced to the extent that there were already issues arising about the number of cases many practitioners were having to manage.

Staffng in the CRC Sodexo’s operating model assumed that a specifc number of staff would be required to deliver it and over the frst few months of the existence of the CRC steps had to be taken to reduce the overall staffng complement nearer to a Target Operating Model. Whilst some of this reduction was achieved by natural wastage, the majority of staff reductions had to be achieved by other means. It was this process which was probably more contentious than any other, not just in Sodexo owned CRCs, but across the country as a whole. Back in June 2014, when the CRCs were frst established in public ownership, the Trade Unions nationally had successfully negotiated with the Ministry of Justice an Enhanced Voluntary Redundancy Scheme (EVRS) that was more generous than anything which existed in almost all the Probation Trusts. As this was a national agreement it automatically superseded Trusts’ existing policies. Each Trust was allocated a sum of money to make some immediate redundancies. These were mostly in relation to support staff (Finance, HR, IT etc.) as CRCs had inherited a disproportionate number of these staff from Probation Trusts because NPS did not require them as they were moving to a national Shared Services arrangement. Furthermore Sodexo’s bid included moving such support services to its own centralised Shared Services arrangements. The staff who largely missed out on these redundancy payment opportunities were operational staff as most of them were still needed during the transitional period and many of them until the new operating model and supporting IT infrastructure were fnally in place. Despite this, as the National Agreement for Staff Transfers included a “no compulsory redundancies” clause, staff were assured that the EVRS would still apply to them if and when voluntary redundancies were being sought. Unfortunately, this was not what eventually happened when Sodexo sought to reduce operational staff. Sodexo initially said that it was not contractually bound to honour the terms of the EVRS. It had certainly not budgeted for this level of severance payments.

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However, the Chief Offcer of Norfolk and Suffolk CRC, who had chaired the GMB SCOOP union for Chief Offcer grades in the negotiations with the Ministry of Justice, advised that Sodexo should clarify this with the Ministry of Justice. Sodexo duly confrmed that it had been advised that if it was to pursue voluntary redundancies these would have to be funded under EVRS. This seemed to be a positive outcome for staff who were at risk of redundancy, but this was short-lived when Sodexo announced that it would not be seeking redundancies at all but instead would be offering voluntary severance. In other words, staff would have to voluntarily give up their jobs in return for a severance package which would be paid on worse terms than EVRS but better than the Redundancy Policies of the previous Probation Trusts. This probably damaged staff morale within the CRCs more than anything else and staff who had been prepared to work with Sodexo and take on board many of its proposed changes now felt they had been treated very unfairly given the assurances they had previously received. Because of what had happened to staff volunteering for redundancy in the months following the creation of the CRCs, this later process was perceived by many staff, albeit erroneously, as “one law for managers and support staff, another law for operational staff ”. There were managers and support staff who had themselves agreed not to seek early voluntary redundancy in 2014 on the assurance that they would receive EVRS severance terms in due course who felt equally badly treated as did operational staff. It is diffcult to know where responsibility for the failings around this lies. Prior to submitting their bids, Sodexo (and indeed other CRCs who found themselves in a similar position) had either not taken proper advice from the Ministry of Justice or, if they had, that advice had been inaccurate. Otherwise, why would bids not have covered the true cost of redundancies as had been negotiated? The worst case scenario is that there was collusion between the Ministry of Justice and the successful bidders who were quietly encouraged from the start to consider alternatives to redundancy. Should this be correct then it would suggest a lack of good faith in the Ministry of Justice’s negotiations with the Trade Unions, given that the EVRS was one of the few positive things that encouraged staff to engage with the subsequent Transforming Rehabilitation changes.

IT infrastructure and data transfer One major piece of work required prior to the separation of the NPS and the CRC was data cleansing and separation and the digitisation of thousands of paper documents. This related to manual and electronic records both for offenders and staff as well as corporate records. For Norfolk and Suffolk Probation Trust with a small IT Unit this was an enormous piece of work and required the Trust to pay staff overtime to come in at weekends as well as hiring some agency staff to help. As regards the CRC’s IT infrastructure, Sodexo, in common with other bidders, wished to introduce its own structures as well as new case management and risk assessment systems. This was another development which was received positively by

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staff as they would receive new laptops and iPhones and be freed from the ongoing diffculties which had for years dogged the Ministry of Justice’s IT provision. The only caveat was that the providers’ systems had to interface with the Ministry of Justice’s systems in order that the Ministry of Justice could collect the data it required to monitor the contractual performance of the CRCs. The IT changes were expected to happen fairly quickly, but, within days of the formal transfer of the CRCs to the new providers, representatives of the providers were called to a meeting at the Ministry of Justice to be told that the electronic gateway which was required to facilitate the interface between the providers’ and the Ministry of Justice’s systems would not be ready as promised. Indeed, work had barely begun on it and its eventual delivery would be signifcantly delayed. For Sodexo this was a major problem as its staff reduction timetable was predicated on the delivery of the new systems. Each month’s delay represented an additional cost which had not been budgeted for and indeed all providers were forced to negotiate with the Ministry of Justice for additional funding to cover the additional staff costs incurred as a result of this failure to deliver the electronic gateway on time.

Premises As Transforming Rehabilitation required the creation of two new organisations but with both, initially at least, occupying the same buildings, the Ministry of Justice introduced a Property Transfer Scheme. This required each Probation Trust to identify all of its assets and divide them up into what the CRC could have and what the NPS would have, including desks, chairs, computers, printers, fling cabinets, projectors, laptops and even smaller items. These all had to be documented and sent to the Ministry of Justice, presumably to be included in the Data Room. In order to deliver its bid within budget, Sodexo planned to make signifcant fnancial savings by rationalising existing properties and where possible moving out of expensive premises. Across the country there were undoubtedly many premises which were not ft for purpose. This was not the case for Norfolk and Suffolk who had rationalised its premises over many years, both as individual Probation Areas and, more recently, as part of the Probation Trust implementation. In particular, the last major building project in the country for Probation, funded by the Home Offce, had been the building of a brand new offce in Norwich replacing several unft operational offces. Opened in 2008, Centenary House was a custom-built offce housing a Head Offce unit with a number of support functions (HR, Training, Finance, IT etc.) and an operational delivery unit which included Community Payback. Operationally it had a large number of secure interviewing offces, groupwork rooms meeting all the requirements for the delivery of Accredited Programmes and storage space for Community Payback equipment including a suite of vehicles. Unfortunately, remaining in such a building came at a level of cost which Sodexo were not prepared to meet. Signifcant effort was made, therefore, to relocate Head Offce and its associated functions and those staff who would form part of a “Hub”, effectively a call centre to deal with many offender contacts,

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appointments and breach activity. Plans were also in place to relocate the other operational staff, but fnding appropriate premises proved elusive. In fact, it was operational staff in Ipswich who were the frst to move into smaller, cheaper premises. Although used to working in an open plan offce, staff had always had access to confdential interview rooms. What they found in the new offce was that the interviewing arrangements were a series of booths, open at the front and with side walls only 5 feet high. Sodexo’s CRC Chief Offcers as well as local management teams consistently raised concerns about the types of premises being sourced and specifcally the perceived lack of confdentiality inherent in the proposed interview booths. These concerns were ignored, with Sodexo claiming that it had been given assurances that the booths were soundproofed to a high standard. In fact, confdentiality was virtually non-existent and whenever anyone stood up they could be seen down the whole row of booths. This raised serious concerns for staff not just about confdentiality, but also the potential for people having violent confrontations across the booths. The thinking behind the booths and the types of premises being sought was that Sodexo wanted to create user-friendly spaces where offenders and potentially their families could report in a more relaxing environment. This was something it had seen work in offces run by the Department of Work and Pensions (DWP). What this failed to take into account was that the conversations which might be held in DWP offces were likely to be much less emotive and diffcult than the interactions between offenders and their supervising offcers, some of which could be about very sensitive issues relating to the offence or to factors in the offender’s background. Certainly many offenders took exception to this lack of privacy and offcers sometimes had to arrange different interviewing arrangements which offered a little more in the way of confdentiality.

Sex offenders The concerns about the more informal interviewing arrangements were brought into sharp focus in respect of issues around sex offenders. Sodexo’s understanding of the Transforming Rehabilitation arrangements, with high-risk offenders being managed by the NPS, was that this meant the CRCs would have no responsibility for sex offenders and therefore family-friendly offces would be appropriate. What those preparing their bid had perhaps overlooked was that the CRC would be responsible for providing some services to NPS offenders such as particular accredited or non-accredited programmes as well as assistance in respect of accommodation, employment etc. Some of these offenders may be current sex offenders or have a sex offending history which would mean that great care would need to be taken in managing them in an offce designed to be family friendly. The misunderstanding about sex offenders extended to another requirement of the contract. In negotiating its sub-contract with St Giles Trust for the provision of Through the Gate services in Norfolk and Suffolk prisons, Sodexo had made no allowance for HMP Bure in north Norfolk. This was because HMP Bure is a

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specialist sex offender prison. However, the contract required the CRC to deliver Through the Gate services to all prisoners within the CPA prior to their release, including those at HMP Bure. As a result of this omission the CRC management negotiated with the Governor at HMP Bure to provide a member of its own staff to deliver these services.

Enforcement The Probation Service had, over many years, made great improvements in its enforcement of court orders and licences. Under Transforming Rehabilitation this became something of a bureaucratic nightmare. Breaches could only be prosecuted in court by NPS staff. They were assisted in this by the provision of a breach pack from the CRC. In Norfolk and Suffolk, NPS staff often rejected breach packs, sometimes for clear errors but also for minor issues such as spelling mistakes. Prior to Transforming Rehabilitation, court staff identifying a problem with a breach pack would go directly to their colleague to get it resolved before it got to court. Now it became a case of passing the buck backwards and forwards between two organisations, sometimes, it was felt, as a way for NPS to manage its workload. The issues around enforcement alone highlighted one of the major faws of the Transforming Rehabilitation model, namely the requirement for good and regular communication between two organisations which had previously been one. This was very damaging for the CRC in terms of both its performance on breach and its credibility with sentencers. However, the CRC’s Contract Manager took the view that an improvement plan was required of both the CRC and NPS which ensured that the two organisations worked together on improving breach practice.

The relationship with sentencers This chapter mentioned earlier the concerns of sentencers regarding the Transforming Rehabilitation proposals. Several briefng events were held for magistrates and judges which were well received prior to the changes taking place. However, the reality, post-implementation, resulted in a number of problems which had to be addressed. The frst was in relation to the strategic relationship between the CRC and sentencers. Norfolk and Suffolk Probation Trust had made sentencer satisfaction and understanding a major priority and had assigned one Assistant Chief Offcer to developing and maintaining excellent sentencer liaison arrangements. Following the implementation of Transforming Rehabilitation, however, CRCs were, at frst, told that they could play no role in such arrangements. This approach was subsequently softened to allow the CRC to attend liaison meetings, but only at the invitation and under the auspices of the NPS. Fortunately, because of the excellent arrangements which had previously existed, this did enable reasonable dialogue to continue in Norfolk and Suffolk.

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Arising from these meetings, some sentencers seemed to feel that any failings by the CRC were inevitably the result of the creation of the CRC. Whilst some of these were probably true, others were examples of things which had been ongoing issues prior to Transforming Rehabilitation, for example the appropriateness or otherwise of certain absences by offenders being deemed “acceptable”. Some sentencers, given their personal views, political or otherwise, were outspoken about the whole of Transforming Rehabilitation with at least one judge saying they would not make any orders which would be supervised by the CRC because of their concern about proft being made out of offenders. Of course, in practice, this stance could not be maintained. Another concern for sentencers was the changes to community orders brought about by the Offender Rehabilitation Act 2014 which came into effect at the same time as the creation of the CRCs. In particular, sentencers were very unsure about the Rehabilitation Activity Requirement10 which allowed probation staff the fexibility to determine what would be required of an offender rather than this being imposed by the court.

Contract management One of the biggest changes for the management team at Norfolk and Suffolk CRC was contract management. In the early stages of Transforming Rehabilitation implementation each CRC had its own Contract Manager supported by various contract management staff whose role was to robustly monitor both operational performance as well as the delivery of the detailed plan to deliver the requirements of the contract. As a result, senior management spent an inordinate amount of time responding to the demands and expectations of the Contract Management Team. This was, of course, in addition to trying to manage and improve the delivery of operational services against targets which increased each month on a sliding scale until the point where Service Credits would be applied, i.e. fnancial penalties to be incurred by each CRC in respect of key targets which were being missed. This approach, whilst understandable, raised an issue which had proved problematical for smaller areas like Norfolk and Suffolk under previous performance regimes. Clearly the smaller the area, the smaller the numerical targets which are required to be achieved. One effect of this, however, is that the percentage achievement of a numerical target can be dramatically affected by just one or two cases. This had been understood historically by regional Performance Managers who had allowed Probation Trusts some leeway. However, when linked to a Service Credit, contract management regime, those one or two cases could prove very costly. The CRC also had to develop in consultation with the NPS an Interface Agreement. This was a document which was required because of having two organisations in one building and listed a whole range of practical things which had to be sorted and managed. These included things such as managing reception, petty cash, allocation of cases, timely reporting back on offenders’ attendance at various activities etc.

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Conclusion Earlier in this chapter I explored the terms “contracts”, “compliance”, “care” and “control” in relation to the world of probation of several decades ago. In the world of Transforming Rehabilitation these terms can mean very different things. “Contracts” are now the mechanism by which CRCs are held to account. They are unwieldy and at times infexible. A phrase often heard during implementation was “because the contract says so” even where what the contract proposed had proved to be unrealistic. Changes to the contract could only be achieved by a bureaucratic “contract change request” and, if this would materially alter what the contract was supposed to deliver, would be scrutinised very closely by the Ministry of Justice. Under Transforming Rehabilitation “compliance” is now a term used as much about meeting the requirements of the contract as it is about offenders doing what is required of them. Enforcement itself has become much more mechanical and routine, with little space for discretion. This is not directly a result of Transforming Rehabilitation, it is more about a one-size-fts-all, National Standards, tick-box type of approach to managing offenders. One of the unintended, but probably inevitable, consequences of introducing post-release supervision for short-term prisoners has been the increase in the numbers recalled to prison. This has been particularly true for women, the number of whom being recalled (including committals) tripled between 2014 and 2018 (+207%)11. Whilst CRCs have been criticised for their use of recall, it is diffcult to see what options staff have with released prisoners who have failed to keep any appointments or to comply with what can be quite onerous requirements. In the early decades of the Probation Service, many staff would have had few reservations about expressing “care” for those under their supervision. More recently such expressions have become “politically” unacceptable. Nevertheless, the word “rehabilitation” is one with which staff can identify. It is thus hugely disappointing that a programme entitled Transforming Rehabilitation should lead to a situation where the main purpose of rehabilitation seems to have become a remote possibility for so many offenders, partly because legislation has removed the requirement for “supervision” and left practitioners expected to solely deliver the quantifable and specifc requirements of orders. Many staff say that they are no longer able to use their inter-personal skills and abilities because of the way Probation has changed over the last 20 years, particularly since Transforming Rehabilitation. However, in many ways those skills are more important than ever in trying to help offenders, many of them chaotic and disorganised, to navigate what can often be a complex package of requirements. The frst 70 years or so of Probation represented a process of assisting offenders by consent. The emphasis in recent decades on enforcement and ever more restrictive National Standards gave staff less scope for discretion in working with different individuals. Alongside this, the unremitting political desire for “tough” or “robust” community penalties and the relentless development of targets linked increasingly

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to funding or fnancial penalties have led to a management approach which has driven staff to exercise more and more “control” over their supervisees. Faced with this, it is not surprising that staff have struggled to cling on to some notion that they are there to help offenders, not just punish them. The widening gap between management and staff has been an undoubted consequence of the privatisation of Probation. When management and staff no longer seem to hold the same set of fundamental values, albeit from different perspectives, then this is a recipe for disaster leading to poor morale and poor performance. Whether this can be remedied by proposed changes in what has become known as TR212 is doubtful as many of the mistakes and fundamental faws of the frst Transforming Rehabilitation programme could be repeated on a bigger scale unless lessons have been properly learned by commissioners and contractors alike.

Notes 1 Home Office 1992 2 Probation of Offenders Act 1907 3 Transforming Rehabilitation: A revolution in the way we manage offenders (Consultation Paper CP1/2013) 4 Transforming Rehabilitation: Summary of Responses May 2013 5 Transforming Rehabilitation: A Strategy for Reform (Cm 8619) page 5 6 Transforming Rehabilitation: A Strategy for Reform (Cm 8619) page 3 7 The Guardian online 14 October 2018 8 Ministry of Justice press release 19 September 2013 9 Transforming Rehabilitation: Progress Review (National Audit Office report March 2019) 10 Offender Rehabilitation Act 2014, s 15 11 Recall of Women to Prison, Parliamentary Debate Pack (CDP-2019–0038) 18 February 2019 by Jacqueline Beard, Georgina Sturge (statistics), Maria Lalic and Sue Holland 12 Strengthening Probation, Building Confidence – Consultation paper CM 9613 July 2018

12 DOES IT WORK? DOES IT PAY? Nigel Whiskin

The observations and opinions in this chapter are not based on academic studies, political or institutional rhetoric but on my experience of working in the criminal justice system for nearly 50 years in the statutory, independent and commercial sectors. For the frst six years I was a probation offcer in Bristol, then for 18 years I developed offender programmes with NACRO (National Association for the Care and Resettlement of Offenders), next 15 years setting up and running Crime Concern, a national voluntary organisation delivering crime prevention and community safety services for crime and disorder partnerships, and the remainder as a founding director of Restorative Solutions, a Community Interest Company dedicated to delivering restorative justice. For the last 15 of so years of my career I was also a part-time paid associate consultant for a security company involved in delivering criminal justice services. It is therefore not unreasonable to claim then that I have frst-hand experience of how different criminal justice agencies operate – and how these engage and interact, or not, with each other and with both the voluntary and business sectors. I will try to show how this diverse experience has informed and infuenced my thinking.

Statutory probation work in Bristol The introduction to my frst job in probation was far from ‘shipshape and Bristol fashion’. I turned up at the offce to report to my senior offcer. I banged and banged on the door but was told by a woman with a posh voice that the offce was closed until 2.00pm and shut the door. I banged again and the door opened a little wider and the woman with the voice said ‘Go away. The offce is closed until two!’ I put my foot in the door and explained I was a new probation offcer. She let me in with a ‘how was I supposed to know?’ The senior offcer turned up an hour later and apologised saying he had forgotten about our appointment. The shambles

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continued with the desk I was allocated collapsing on touch. I was given a small caseload in a defned geographical area, but a day later I was told also to cover the work of my offce partner who had broken his leg. He worked in a completely different part of the city. For a supposed caring agency, I did not understand why the offce closed for two hours at midday, a time convenient for clients to come in during their working day. I was also surprised that clients were not allowed to use the staff lavatories. In the magistrates’ courts we were instructed to read our social enquiry reports aloud, a practice that was humiliating for clients and inhibiting for reporting offcers. Working in the front line was a privilege and I learned much about offenders and how they came into confict with the law. For all the emphasis on Freudian-based casework,most offenders seemed to need practical help with accommodation,clothing, furniture, work, benefts, basic skills training, access to medical care, help with family relationships. A lot of time was spent sorting out benefts with the Department of Health and Social Security – or Stealth and Total Obscurity as it was usually referred to. I built up a team of over 20 volunteers who worked as mentors to most of my caseload. This greatly irritated some colleagues, who resented the volunteers being in the offce at all, using the staff room and of course the toilets. These volunteers were mostly students on teaching, social work, psychiatric nursing and the like. One volunteer on a teaching diploma course taught a young client how to read by recording his stories about growing up in a Dorset village, transcribing these into a booklet which she illustrated and getting him to read from them. My weekly problem-solving sessions with the volunteers were modelled on the group work promoted by the Tavistock Clinic designed to enrich the relationships between doctors and their patients but it worked very well for the volunteers. My time in Bristol coincided with a period later described as The Golden Age of Probation. Some of the contributors in the book of the same name, edited by Roger Statham, I came to know, work with and respect. But it wasn’t a Golden Age for me. Weak leadership, no vision of what we were supposed to be doing and little management other than keeping the wheels on the wagon and the wagon on the justice road. Like colleagues I was left to my own devices to exercise my ‘professional judgement’, whatever that was supposed to be. I did meet inspirational colleagues – like Gordon Macfarlane – who were able to communicate a sense of purpose – but I left the service frustrated that it was a self-serving machine unwilling and unable to engage with the deprived social, fnancial and family backgrounds that most of our clients came from. For all the political rhetoric in the offce tearoom, there was no appetite to tackle the underlying issues of poverty and disadvantage. When I moved on, my cadre of 20+ volunteers were disbanded within weeks.

The voluntary sector, with NACRO The move to NACRO, at the suggestion of the late Chris Holtom, a member of the Bristol probation committee, brought me in touch with a clearer vision of how to help people to stay out of trouble. For the frst two years I created my own work

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programme, setting up accommodation facilities, promoting the use of volunteers and training hostel staff. The arrival of Vivien Stern brought leadership and a clear place for the organisation in the criminal justice system. She knew what she wanted to achieve, paid great attention to detail and was not afraid to take diffcult decisions about policies and people. With unemployment touching three million, Vivien asked me to explore the Manpower Services Commission’s Youth and Community Employment Programmes and to see if these programmes could be used to support offender rehabilitation. She had forged a strong rapport with the MSC chairman Sir Richard O’Brien and its chief executive Sir Geoffrey Holland. Amongst my NACRO colleagues there was resistance to getting involved with the MSC in what was perceived as a Tory ‘make-work programme’ with Margaret Thatcher and Norman Tebbit at the helm. The counter-argument was that work was known to be the best way out of a life of crime and that we would create opportunities for offenders who otherwise stood scant chance of fnding jobs. Pilot youth projects were set up in Bristol, Cardiff, Birmingham, Wolverhampton, Manchester and Liverpool, set up after a series of Sunday morning phone calls with chief probation offcers asking for their support. The emphasis was on fnding work for everyone who came through the door – whatever their strengths or weaknesses – building their self-confdence and presenting them back to mainstream employers. We learned that employers had a simple message – they wanted our ‘graduates’ to be taught ‘the disciplines of a working life, get them to take part in the enterprise, no fghting or thieving’. We trained our teams to work with people who could be uncooperative and taught them how to be instructors. We developed an open referral system – removing barriers between potential participants and the opportunities we provided. The work we offered was in the main worthwhile and involved learning practical life skills as well – more than just litter picking. Taking all into account and thanks especially to the team leaders – Mike Campbell, Keith Taylor and Jean Sowerby on the youth projects and Bruce Cadwallader and Lorna Windmill with the adults – we built up a programme that provided thousands of employment and training opportunities for offenders and long-term unemployed people at risk of drifting into crime. At the height of the programme, in 1987, 18,000 men and women were benefting from opportunities in over 200 projects across the country. The key lesson I learned from this experience was the need to develop a properly differentiated team with leaders, managers and supervisors. As a leader my job was to set the direction for the projects, create a structure to ensure we achieved our objectives and to keep control of our spending. Given that most of the staff on the project teams had themselves been long-term unemployed, what we achieved was not perfect. As Dr Johnson observed about a dog that walked on its hind legs, ‘It’s not remarkable that he does it well but that he does it at all’. We refurbished community halls round the country, built access ramps for the disabled, created honey spots on housing estates, transformed buses into mobile community centres,

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maintained gardens for pensioners and designed and made toys for disabled children. One project manager came up with a nice line of garden gnomes. Vivien set the tone and her approach to the implementation of equal opportunities was outstandingly resolute in delivery. She insisted that every conference we ran had speakers, chairs and workshop leaders from both genders and ethnic minorities. Every shortlist for jobs had similar strictures. We were one of the frst organisations to record and review gender and ethnic details of people who delivered and used our services. However, a valuable advantage we had over the statutory services was that we were able to deal promptly with personnel who didn’t deliver or abused our trust. And for all the huff and puff of socialist opposition to ‘job creation projects’, two members of our development team went on to become Labour MPs.

Crime concern – a challenge NACRO’s international contacts in the 1980s had brought back from North America an increasing optimism about partnerships between the business sector and statutory organisations to tackle to the social dimensions of reducing crime. Steve Norris – a businessman who had briefy been The Guardian’s ‘backbencher of the year’ before the voters of Oxford East had other ideas – was asked by the Home Secretary to set up an organisation to take this forward. The Home Offce undertook to fund the organisation for three years to the tune of £1m a year, after which it was expected to become self-funding. No one really believed this could be achieved. As the frst chief executive of Crime Concern, I was able to draw on the tighter organisational principles that were being developed at NACRO and the businessorientated thinking of our board members. It was not diffcult to build a team of managers who were enthusiastic about crime prevention and community safety. Jon Bright, Sohail Husain, Martin Seddon, Stephen Burke and others developed practical and effective ideas. More diffcult was creating an organisational profle that would encourage big corporations, the police and local government to work together. The frst two or three years were particularly tough. There was a disconcerting degree of hostility from the police. One of the HM Inspectors at a major conference insisted that we had been established to ‘privatise’ crime prevention and quoted the way in which security companies were taking over certain policing duties including the transport of cash. We were caught in the backwash of police concerns about the rapid growth of the security industry even though several retired chiefs were recruited by security companies as board members or consultants and hundreds of retired police offcers worked as managers, supervisors and trainers in the security industry. The chairman of the ACOP (Association of Chief Police Offcers) Crime Prevention Committee said of us at a conference ‘you are like men who steal your watch and then tell you the time’. And even though the head of the Police Crime Prevention Unit was an observer at the Crime Concern Board he delegated members of his team to attend our events and covertly tape recorded what we said.

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Then there were the changeable relations we had with the Home Offce. After Douglas Hurd, who was good to work with, in quick succession we had Waddington, Baker, Clarke and Howard before Straw and Blunkett took over for Labour. Seven different ministers and a similar number of junior ministers – each wanting to make an impression either by doing something differently or by shutting something down. And all were working to reduce the fnancial support they were providing. Our business sponsors included Vauxhall Motors, Prudential, Sainsburys, Marks and Spencer, Nat West, Barclays, Boots, Legal & General, Direct Line, Norwich Union, Securicor, Reliance, Stagecoach and British Steel. Of course, we had to attend to their need for recognition by running conferences with government ministers, putting their logos on our publications and mentions in the press and trade journals. Throughout we had amazing support from Her Royal Highness The Princess Royal, who chaired our group of patrons. Some sponsors wanted to gain access to politicians and heads of departments not to pitch for business directly but to make potential customers aware of what they had to offer. Our annual turnover of £15m came equally from selling consultancies, running practical projects and corporate sponsorship. Working in this mixed environment of police, big business, national politicians and local government meant that the practical methods we were developing had to be simple to understand, could show they made a difference and were value for money. Jon Bright, following a sabbatical year in the US, drew our attention to the need to broaden the crime prevention agenda to address the risk factors associated with young people drifting into crime. We went some way towards developing a strategy which we called ‘family, school and community’. This was popular with both sponsors and trust and foundations. This contrasted with the security-minded narrative that dominated the crime prevention agenda at the time. Our resulting projects such as Splash, Mentoring Plus, Safe Neighbourhoods,Youth Inclusion,Youth Works and Drive, were the highlights that stemmed from an analysis of how young people drift into crime. Mentoring Plus achieved some outstanding outcomes with young people not in education, employment or training (NEETS) by getting over 70% back into training or work within a year and reducing crime rates amongst the cohort by two thirds. The Safe Neighbourhood burglary programme got some good results, cutting burglary in sink estates by two thirds and the Youth Inclusion Programme resulted in fewer calls to the police about youth nuisance, less vandalism and better school attendance. For reasons we never understood, the Home Offce Research Unit did not evaluate any of our community-based programmes in spite of promising results. Really surprising and disappointing when one considers that something like half of all crime is committed on our sink estates and two thirds of young male offenders are brought up on them.

Working with commercial criminal justice services In the run up to the turn of the century, I was invited by a national security company to act as a part-time associate consultant. Working on the inside of such a business was a real eye-opener and in hindsight I wish that I could have had the

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experience much earlier in my career. Some major outsourced programmes illustrate the approach of such companies to providing justice services. Police Custody Suites are buildings where arrested people are taken for assessment and possible detention. Several police services across the country have used the much-criticised Private Finance Initiative (PFI) to build or refurbish their custody suites. The company I worked with was responsible for running a number of these facilities, which deal with some of the most vulnerable people in our society suffering mental illness, drug or alcohol problems, as well as those with suicidal tendencies and those suspected of the most serious offences. The designated custody offcer must be able to process arrested people quickly and take decisions about whether they should be charged and if they need to be remanded in custody. A wide range of associated tasks needs to be undertaken as swiftly and reliably as possible so that attention can be focused on the key decisions. These tasks include taking ID photos; DNA swabs; fngerprints; arranging interpreters; arranging identity parades; providing food, clothing and access to medical care; monitoring cells for suicide or self-harm risks; and keeping the place clean and hygienic. A fresh analysis of these processes combined typical business solutions with established police procedures. Effciencies were introduced by more differentiation of roles, clearer job defnitions, detailed operational procedures and staff recruited on the basis of known competences. Recognising the critical role of the custody offcer the company consulted with them to fnd out what if anything could make their jobs easier and more effcient. The challenge was to process arrested people quickly and accurately so that the arresting offcers could get back ‘on the street’. One problem highlighted by the custody offcers was their lack of keyboard skills for processing the paperwork. The solution was to provide the custody offcer with access to team members who had keyboard skills to complete the paperwork. The custody offcers were always experienced serving police sergeants. The other personnel were drawn from a range of backgrounds including retirees from the military and police and people from non–criminal justice backgrounds trained to undertake the specifc tasks required in the custody suites. In one police area, outsourcing of custody suites to the business sector released 200 trained police offcers for front-line duties and reduced costs by £2m a year. Arresting offcers spent 25% less time idly waiting while their cases were being processed. Electronic Monitoring has enabled the long-established sanction of a curfew to be effectively monitored. Home curfews are used in borderline cases as an alternative to custody or as part of an early release package. Forcing people to stay in their homes for part of the day – mostly evening and night – is intended to be an unwelcome intrusion in their freedom but it will not necessarily stop them committing crimes. Probation have generally opposed ‘tagging’ on the grounds it was too authoritarian and punitive – a puzzling reaction as most offenders would prefer a curfew at home to a prison cell.

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The most rewarding innovation came from employing feldwork offcers whose task was to set up the monitoring equipment and ft the tags. The feldwork offcers were drawn from a wide variety of backgrounds like former military personnel, retired police offcers and women returning to work. The offcers were encouraged to provide a welfare service alongside their monitoring role. This came as part of the company’s insistence that feldwork offcers did everything within reason to help the people in their care complete the curfew. This in effect meant visiting every two weeks, more often if needed, and dealing with any issues they encountered. They checked job vacancy columns to see if there were suitable employment opportunities, bought supplies if people ran short of milk or cigarettes, brought books to read, and, in effect, ‘advised, assisted and befriended their clients’, the traditional role of probation offcers. The offcers made it clear that they had no discretion in terms of reporting breeches of the curfew as this was done automatically by the system. Consequently, they were able to develop non-authoritarian relationships with their clients, similar to those formed by inmates in youth institutions with trade supervisors or canteen managers. The offenders on tags could contact the centre at any time – for a chat when they couldn’t sleep or were feeling down or to discuss specifc personal problems. As some appeared to be contemplating suicide the call centre operators received training similar to that provided by the Samaritans to their volunteers.The training for feldwork offcers was delivered by a former senior probation offcer. Secure Training Centres were conceived in 1993 by the Conservative government when it decided that separate residential facilities were required to cope with the growing number of children under 16 years of age whose persistent offending was not responding to community-based treatment. The regimes of the existing local authority secure units were being distorted by the presence of these people. Michael Howard’s team at the Home Offce took up a concept frst proposed by Kenneth Clarke for a short-term custodial facility featuring education, social learning, personal problem-solving and active release planning. During this time, I kept in contact with a friend who was working for one of the companies bidding for STCs. Apparently, the decision to bid for these contracts followed an in-depth assessment at the highest level in the company. The possible proft had to be set against the obvious risk of severely damaging the corporate image evidenced by the adverse publicity arising at the time from ill-treatment scandals in local authority units. But despite the general disapproval of the childcare sector for these new ‘child jails’, there was no shortage of well-regarded experts willing to shape the company’s response – provided their contribution was kept confdential. Designing a good-quality secure environment was relatively straightforward because the tender documentation specifed high standards throughout; for example, education was to follow the National Curriculum, it would involve more hours per week than schools in the community, and classes would have one teacher for every three pupils. Advantage over other bidders had to be achieved by delivering these features at a competitive price. Staff profles, management structures, effcient campus layout, modern construction techniques and materials, design

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features that reduced non-contact staff requirements and securing capital funding at competitive interest rates all played a part. Medway STC took its frst offender in 1998 – a 13-year-old who had persisted in recruiting younger school pupils for prostitution. After the initial ‘bedding down’ phase, government inspections rated the STC as ‘good or ‘outstanding’ for 12 consecutive years. At this point, three key changes were made by the Youth Justice Board to the original service contract that began to strain the concept on which the STC was based. The occupancy rate had been doubled, the upper age was raised to 18 and young people waiting for their trial were introduced. In consequence the company recruited personnel better able to cope with higher levels of behavioural challenge, but this led to a deterioration in the care for the remaining younger children and the eventual takeover by HM Prison Service in 2018.

Prisoner escorting The oldest and most successful outsourced contract run by the business sector has been the prisoner escorting service; this is picking up people from police custody suites and prisons to attend courts and returning them as necessary. The contract also required the contractor to provide security in the courts. The frst-ever prisoner escorting contract got off to a sticky start attracting much adverse publicity for escapes and wrongful releases and poor performance in terms of delivery times. The company I worked with won second-round contracts for one English region and Scotland. By this time tracking technology had developed. The business set up a sophisticated ops room in which all the vehicles engaged in transporting detained people were tracked, routes to and from the courts monitored and personnel trained to deliver people to and from the courts. Over fve years escapes and releases in error were rare and delivery in the order of 97% right people, on time and right place. Hundreds of trained prison and police offcers were released through the outsourced contracts to return to front-line duties.

Privatisation – or is it outsourcing? The argument about business and voluntary sector engagement is bedevilled not just because it is caught in the crossfre of conficting political ideologies but also because the terms ‘privatisation’ and ‘outsourcing services’ are commonly taken to mean one and the same thing, the term ‘privatisation’ being loosely and incorrectly applied to ALL private sector provisions. So, it makes sense to defne what is meant by the term ‘privatisation’. Privatisation is the sale of state-owned industries and services into private ownership. Independently companies take over the activity completely – including the means of production, property and plant – and are free to distribute any future profits to their shareholders. Examples include the privatisation of the utility services of water, gas and electricity. These companies are subject of course to independent

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regulation by Ofwat and Ofgem who set the price, investment and the services packages the customers receive as well as deal with complaints. By this defnition there are no privatised police forces, no privatised prisons, courts or probation services. Outsourcing on the other hand is about a service provider contracting with private and/or voluntary and/or other public sector organisations to deliver some or all its services for a limited period of time. Outsourced contracts in the criminal justice sector include backroom services like pay, catering, facilities management (a posh term for cleaning and general property maintenance), technical services like IT and communications support, feet management and other ancillary provisions. In addition, there are now outsourced contracts that interface directly with the criminal justice system and its core business. These include prisoner escorting and court security, electronic monitoring, prison management, youth offender establishments, bail hostels, police custody suites, drug treatment, translation services, fnes collection and enforcement, medical services in penal and remand institutions, community service and aspects of community sentences and casework with nonviolent offenders. All CJS outsourced work is subject to open competitive tendering processes. Prospective tendering opportunities are publicly advertised. Commissioning bodies go to considerable lengths to ensure all prospective bidders are treated fairly and in the same way. Hence if one bidder asks a clarifcation question about the tender all bidders will receive the answer. All bidders are subject to due diligence before the bidding process starts. All outsourced work in the UK is subject to legally enforceable and binding contracts that determine the range and scale of services to be delivered, quality standards for delivery, targets and performance indicators, fnancial penalties for poor performance and contractual breaches, and procedures for cancelling the contract if the contractor consistently fails to deliver the specifed services. A monitoring mechanism holds the contractor to account and ensures compliance with the contract. This is arguably more robust than the scrutiny applied to most public and voluntary sector organisations working in the CJS must pass before receiving their annual grants from government.

The history of privatisation The onset of outsourcing in the criminal justice system began during the Thatcher government when it began to consider how to involve business in managing custodial establishments as in the US. Hardly surprising that there should be a political divide, with tribes lining up on either side of the debate. Neo-liberalism was, and still is, used by the left pejoratively to describe what is wrong with capitalism and globalisation. The received wisdom at the time was that Home Offce ministers wanted to break the stranglehold that the Prison Offcers Association held over the conditions of service and its resistance to changes in working practices.

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Concerns about reconviction rates and dissatisfaction with the work of the Probation Service surfaced during Michael Howard’s time as Home Secretary, who expressed frustration by the unwillingness of the leadership of the service and National Association of Probation Offcers to cooperate with the Home Offce in effecting reforms and introducing new ways of working. This dissatisfaction ran on into Jack Straw’s tenure as Home Secretary and he commissioned businessman Patrick Carter to take a comprehensive look at what could be done to improve the effectiveness of the criminal justice system. The Carter Report was published in 2003 under the title Managing Offenders, Reducing Crime. The proposals were radical and wide-ranging, envisaging the establishment of a National Offender Management Service, market testing CJ services including prisons, creating a regime of competition and contestability so that the public, private and voluntary sectors could bid to manage a range of CJS services. In 2004 David Blunkett, who succeeded Jack Straw, in a report entitled Reducing Crime – Changing Lives. The Government’s Plans for Transforming the Management of Offenders, accepted the Carter recommendations and outlined implementation plans.

Aspects of a business approach From attending board meetings and working on proposals and projects, I began to witness what real management was about. There were several aspects that contrasted with what I had been used to in non-commercial organisations: the constant search for repeat business; a policy of continuous improvement; expecting personnel at all levels to suggest how the work could be done better and more economically; and job-specifc training. Order books were constantly reviewed. New prospects, progress on existing negotiations and timelines on delivering contracts were recorded. Each entry had a monetary value attached – contract value, likely proft, key timelines. The data demonstrated how the business was performing and predictions on how it would fnish up at year-end. One mantra was ‘turn-over is fattering, proft is essential, but cash is king’. The recent collapse of outsourcing companies has in part been attributed to delays on delivering contracts which impacted on cash fow and left the business with no money to continue operating. Because the review was an ongoing process there was time to intervene if some contracts were failing. The intervention might involve personnel changes, renegotiating the contract or redesigning elements of the contract. This level of managerial control was never possible in my previous work. The large commercial organisations retain a group of experts who are called on to offer advice on the risks and benefts involved in new opportunities. They will assess operational risks – such as escapes from custody, suicides, injuries to staff – and reputational risks to the company. Senior executives will have to get the approval of the company board to invest in making the bid, which will involve assessing the likely success or otherwise, prospects for generating income and proft from the contract and the likelihood of securing similar or repeat work going forward. Bids

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for prisons are very expensive and the company I worked with spent £3m on an unsuccessful bid, money that was not recoverable. Having got board approval, the company will recruit a bidding team. This would be led by one of their experienced general managers but they would pay to attract people with a high level of experience in managing an equivalent statutory service, business managers from a company with expertise in formulating bids, including designing fnancial and operational models in line with the culture of the company and its modus operandi. The bid team will work to fnancial constraints set by the board. The fnal price offered to the commissioners will remain highly confdential. If the bid has been successful, a different team is assembled to mobilise the project and a third team will then implement it. Most of the leadership positions would be flled by people with good professional backgrounds within the justice system. They bring knowledge of what works but retain their professional integrity. Most of the frst-line managers, and almost all front-line staff, would be freshly recruited from across the whole employment spectrum but selected for their attitudes and abilities by rigorous competency-based assessment processes. Once in operation, effective leadership and management is needed to ensure that the work gets done, enough trained personnel are available, personnel know what they have to do, resources are prudently nurtured and deployed within budget, agreed performance indicators are met and there is a regime of continuous improvement and innovation. It is often asserted that the proft motive is the driving force behind this work. Whilst the owner or shareholders need to know that they will get a reliable return, the pressure on those planning and delivering the contracts is to maintain or expand the business. And the way to do this is to meet or exceed the standards of service specifed by the commissioner.

Debate – the pros and cons Most discussions about the involvement of the business sector working in criminal justice are long on opinions and short on facts. On one side of the argument, neoliberals are determined to ensure the taxpayer gets better value for its investment through competition and increasing the share of the economy going to the business sector. Against, there are the views of those who believe that the state is responsible for safeguarding the public – and on civic grounds alone the state should be responsible and accountable for running all aspects of the criminal justice system. Some argue that the private sector offers competition, choice, innovation and price, while others defend the status quo arguing that it is unethical for business to proft from enforcing the law. And then there are the issues of accountability, professional standards, job protection and conditions of service for CJS personnel. Rarely are arguments about thrift, economy and productivity heard above the clamour of the ‘rightness’ of the state doing the spending and the delivery. Leaving ideological consideration aside, I suggest the real argument is about ‘who is best at delivering high-quality services for the lowest unit cost?’ Another way of saying

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‘does it work? does it pay?’ Given the dearth of evaluations about outsourced service delivered by business, it is not possible to assert with complete authority that any programme was either a success or failure. All we can do is from our experience point to some outsourcing programmes like those mentioned earlier in this chapter that were operationally successful. The criminal justice system is in competition with other public services for the taxpayers’ money; NHS, care services, for the elderly and vulnerable, transport infrastructure, education, defence, affordable housing, social services. We owe it to the taxpayer in return for their investment to provide services that do what they are intended to do, namely to reduce crime and offending. There is no justifcation for having a criminal justice system in general if it fails to achieve these objectives; and to fulfl them inspired leadership and robust management is essential. There is no point in a criminal justice system if it fails to engender public support and confdence. The situation of criminal justice agencies contracting private companies to deliver backroom services does not generate much argument. The rubbing points occur when a contractor fails to deliver the service to the standards in the contract. Hard to see how objections could be raised to commissioning contractors to maintain the lifts, clean the drains, service the central heating system, maintain gardens and provide IT support. The outsourced contracts that impinge directly on the core business of criminal justice agencies have consistently raised concerns about accountability, about job security and conditions of service, and about the capacity and capability of the contracted service provider to deliver high-quality, professional services; concerns as well about the morality of making a proft from criminal justice services and whether or not the private sector can be trusted not to exploit the system to increase their profts. From the start of outsourcing CJS services, the business sector has attracted seriously damaging press coverage. Look on Wikipedia, the NAPO and Howard League websites and there are long lists of outsourced contracts – some duplicated – run by the private sector in this country and abroad that have failed. It is surprising that the businesses involved have chosen not to either refute the allegations, defend their positions or explain what occurred. Insiders say it is just too risky to defend the company’s position for fear of alienating ministers and senior offcials when contracts worth thousands of jobs and millions of pounds are on the line. The unresolved investigation into possibly infated billing by some electronic monitoring providers leaves many questions unanswered. Over fve years later no one has been charged with any offences and it is beginning to sound like a cock-up rather than conspiracy to defraud. And yet the stigma still besmirches the reputation of the two companies and the integrity of their staff involved. Of course, it is risible to suggest that the public sector does not have its share of implementation failure and scandals. Public sector prisons have their problems with violence, self-harming, drug abuse, suicides, disturbances, flth and squalor. Somehow, they do not seem to attract quite the same venomous criticism as do the blunders and mishaps by companies involved in providing services to the justice sector. The lack of suitable research equally handicaps proper policy decisions.

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Without accessible comparisons between contracts managed by the public or private or voluntary sectors taking into account performance, costs and opportunity costs, there is scant hope of arriving at a balanced opinion about what are the best options for the public purse and thus the taxpayer. It is surprising, and in many ways reprehensible, that government has pursued some outsourcing options without running test trials – like the recent and ill-fated and ill-considered part-outsourcing of probation. I propose that government consider publishing annual reports that answer questions about the costs of setting up the service including procurement, performance against targets, quality of service and comparison of costs and performance with the public service it replaced. Then will we be able to have a meaningful discussion, short on opinion and long on facts, about how best to deliver criminal justice services. The fg leaf of ‘commercial confdentiality’ cannot be allowed to deny the public the right to know how outsourcing is working and if it yields worthwhile returns for the taxpayer’s investment. Since writing this chapter two people from one of the companies involved have been charged false reporting and conspiracy to de-fraud.

13 LEGITIMACY IN PROBATION AND THE IMPACT OF TRANSFORMING REHABILITATION John Deering

Introduction This chapter considers the impact of the marketisation and part-privatisation of the Probation Service in England and Wales upon its legitimacy, focusing on the selflegitimacy of practitioners. Following Transforming Rehabilitation (TR) (Ministry of Justice, 2013) the unitary, public sector National Probation Service for England and Wales (NPSEW) was subject to a marketisation process that resulted in it being split into a new National Probation Service (NPS) and 21 Community Rehabilitation Companies (CRCs). Whilst the NPS remained within the public sector (although as part of the civil service), the CRCs were created following a competitive tendering process that resulted in a mix of ownership, mainly of partnership and joint ventures between the private and voluntary sectors (Deering and Feilzer, 2015: 13). Legitimacy can depend upon a number of factors, both internal and external to an organisation. The intention here is to look briefy at external and internal legitimacy, both of which are likely to have been affected by TR, but to concentrate on self-legitimacy. Self-legitimacy considers the experiences of practitioners and their confdence in their authority and role. It thus appears to be most likely to affect everyday probation1 practice, through its relationship with practitioners’ own values and how they may have come to view the values and purposes of the reconfgured probation ‘feld’ (Bourdieu, 1977). Self-legitimacy depends upon the attachment an individual employee has to an organisation, which is itself in part a function of the degree to which their values, aims and purposes coincide. The argument presented here is that self-legitimacy in probation has been under pressure for some time. This view is based upon empirical research with probation practitioners (and to a lesser extent managers) concerning the impact of a series of top-down changes imposed by government, of which TR was the most radical. Having considered the views of practitioners, the chapter

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reviews practice post-TR and argues that this has seen many of their fears realised, with a likely signifcant negative impact upon legitimacy. Moreover, in the time since the writing of this chapter, the government has moved to remove many of the original aspects of TR (Her Majesty’s Prison and Probation Service – HMPPS 2019) and during 2019–21 the NPS will take over all the supervisory functions of the CRCs in a ‘reunited’ public sector service. However, the extent to which this will allay many of the concerns around legitimacy remains to be seen.

External and internal legitimacy Both external and internal legitimacy may be seen to be important, because they relate to whether the public and organisations outside probation believe that it has the moral authority and right to supervise and enforce law-abiding behaviour via the criminal justice process (Hough et al., 2010). Both forms of legitimacy exist at what Beetham (1991: 16) refers to as procedural and perceptual levels. These require authority and power to be exercised in ways that allow the following conditions to be satisfed: conformity to established rules; that rules are based on shared beliefs and values; that express consent is given by those subject to such power. External legitimacy is regarded as the extent to which an organisation’s offcial purpose, aims and practices are viewed as justifable and effective by other organisations and individuals not necessarily directly affected by its activities (Bradford and Quinton, 2014). In the case of the probation service2, this means the public, politicians, the media and other criminal justice agencies etc., and the views of politicians and government, revealed via policy regarding the governance and aims of probation, are one of the foci of this chapter. In terms of the public, the Probation Service has always lacked a public face and voice, with levels of knowledge about probation and the criminal justice system as a whole generally low. It is likely that the public’s view (if such an identifable thing exists) is that the Probation Service ‘helps offenders’ and individuals are likely to view this as legitimate or not according to their personal beliefs (Hough and Roberts, 2004; Roberts and Hough, 2005; Robinson et al., 2017). The courts and other agencies within the criminal justice system will also have a view, and it seems reasonable to assume that this has come under review as changes over recent decades have unfolded, particularly after TR. A possible insight into one element of this is the continuing reduction in use by the courts of community sentences, which may be related to the changes imposed upon probation, refecting a possible disillusion with these developments. For example, a recent study into the use of community sentences reported a lack of confdence felt by courts, in terms of their overall effectiveness and usefulness as an alternative to prison (du Mont and Redgrave, 2017). In contrast, internal legitimacy concerns the views of those directly subject to, or involved with the work of an organisation, thus requiring the third of Beetham’s (1991: 16) conditions for legitimacy stated earlier, namely ‘that express consent is given by those subject to such power’. In the case of probation, this would be those individuals subject to the various forms of supervision, e.g. community orders and

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post-custody licences. Clearly, such expressions of consent are not automatic and could be based on a number of factors. One way in which such internal legitimacy could be assessed is in relation to levels of compliance, i.e. if individuals comply with a court order or licence, they are likely, on some level at least to be accepting of the legitimacy of probation. However, as Bottoms (2001) has proposed, there are layers of compliance that make this a more nuanced subject. He argues that compliance can be superfcial and instrumental, taking place simply for the individual to avoid the consequences of non-compliance. On the other hand, ‘normative’ compliance can include a genuine engagement with supervision and is likely to be related to internal legitimacy (Bottoms, 2001; see also Burke et al., 2017; Robinson et al., 2014). Others have pointed to the importance of the relationship between the probation practitioner and supervisee being infuential in compliance and thus related to internal legitimacy (User Voice, 2015; McNeill and Robinson, 2013). For some, there is also the question of whether probation ‘ownership’, i.e. whether the service is within the public, or private/voluntary sectors will, in turn, affect the professional relationship and compliance (McNeill and Robinson, 2013; and see later on in the chapter). However, whilst this is clearly a possibility, research in other criminal justice sectors (Crawford and Hucklesby, 2013; Hucklesby, 2013), namely private prisons and tagging, investigated this question and suggested that internal legitimacy may not be linked to ‘ownership’ per se, but rather to the view that the individual supervisee has of the relationship they have with a supervisor.

Self-legitimacy The following section draws upon empirical studies that aimed to develop a clear picture of the underlying and overt principles and values that have been traditionally associated with probation practice and to identify the extent to which they are shared by practitioners and by the service itself, both prior to TR and since (Annison et al., 2008; Farrow, 2004; Deering, 2010; Deering, 2011; Deering et al., 2014; Deering and Feilzer, 2015; Deering and Feilzer, 2017). The data that emerge from these studies are generally consistent and suggest that a level of divergence has developed between the values of practitioners and those of some managers and the service itself, resulting in strains upon and threats to practitioners’ sense of selflegitimacy. Furthermore, the argument made here is that such pressures have been developing for some time and that TR exacerbated signifcantly a situation that had already been developing (Deering and Feilzer, 2017, 2018). The concept of self-legitimacy was developed by Bradford and Quinton (2014) in relation to their study of police offcers’ perception of whether ‘their role and activity . . . is justifable’ (2014: 1026). They argue that self-legitimacy can be measured in a number of ways relating to the police’s view of their professional role and that of the organisation employing them. They explored police offcers’ confdence in their authority, the sense of them occupying a special place in society and the extent to which they feel enabled and supported by the organisation. They argued that relationships between offcers and the organisation were of central importance

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in terms of the former being able to internalise the latter’s values (because these need to coincide) and hence identify with it in professional, moral and ethical terms (Bradford and Quinton, 2014: 1028–1032). A necessary extension of this and thus a further important element of self-legitimacy is a feeling of shared identity with colleagues, of being a member of a profession of the like-minded. These ‘correlates’ of self-legitimacy seem transferable to other criminal justice agencies and they form the basis of the discussion here. Whilst the studies referred to in the following did not directly consider legitimacy, questions were asked about issues that can be extrapolated to self-legitimacy, namely: personal and professional values; the values of the organisation; the sense of support from the organisation and a commitment to it; the existence of collective values; a belief in holding legitimate authority.

Probation values and purposes The debate over probation values has continued over recent decades and includes theoretical and empirical research (Deering, 2011). These are discussed later in more detail, but a number of studies have resulted in data that are largely homogeneous and refect the following views about values: [the importance of an] individual relationship between supervisor and supervisee that was based on: respect for the individual; a non-judgemental approach; a belief in the individual’s ability to change; a balance between ‘care and control’ (to more recently include risk and public protection); pro-social modelling; and an appreciation that crime had its roots in a complex mix of social causes and individual factors unique to the individual. (Deering and Feilzer, 2015: 2–3) Moreover, practitioners in a number of studies have consistently indicated that they joined the service and remained within it to ‘make a difference’ in an organisation that held and promoted these views and which did so within the public sector. The broad purpose of their work was rehabilitative, whilst acknowledging the criminal justice context in terms of responsibility and accountability to a court sentence. Moreover, engagement with individuals should be needs- and rights-based and not focused primarily on any notion of punishment (Robinson, 2008: 431) although elements of punishment clearly exist within probation supervision (Deering, 2011). A further element that emerged as important in some of the empirical work and which contrasts with studies mentioned earlier (User Voice, 2015; Crawford and Hucklesby, 2013; Hucklesby, 2013) was ‘ownership’. Respondents in a study of over 1,300 probation staff not only felt that the ‘what’ was important in terms of practice and values, but also the ‘who’ – there was a strong normative trend that this should be the public sector, as only the state should be directly involved in the supervision of individuals (Deering and Feilzer, 2015). The imposition and carrying out of any form of punishment was seen as morally reserved to the state in its

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role of representing the population overall. Moreover, some respondents also argued that it was wrong for proft to be made indirectly from the commission of crime, thus giving a slightly different objection to the involvement of the private and third sectors. Additionally, the ‘outsourcing’ or privatisation of supervision was seen as likely to be less effective due to the differing values underpinning private or third sector organisations, which were likely to skew practice. These views infuenced the study’s defnition of the ‘probation ideal’ in the following terms: a public sector task that aims to engage with those under its supervision in a humanistic and supportive manner with a view to encouraging behavioural change whilst recognising structural and social disadvantage as important factors in offending that need to be addressed. (Deering and Feilzer, 2015: 2)

Reasons for joining probation As mentioned, respondents in a number of studies have stated that one of the reasons for joining the Probation Service was to ‘make a difference’ and in a study of Trainee Probation Offcers (TPOs) this and other reasons were investigated (Deering, 2010). The study involved over 100 TPOs in two cohorts undertaking the professional training at that time, the Diploma in Probation Studies (DiPS). Although applying for a job within the new National Probation Service for England and Wales, that had at its launch in 2001 declared that rehabilitation was the last of its fve priorities (Home Offce, 2001), the TPOs clearly identifed having a ‘satisfying and meaningful job’ achieved via ‘helping people’ as the most important reason for joining (Deering, 2010: 19). Moreover, respondents appeared to have joined whilst aware of the government’s wider aims for the service, in terms of law enforcement, offender and risk management and public protection. Whilst they acknowledged this direction of travel, they seemingly were not intending to always follow it to the letter, but to work at times with a different emphasis (Deering, 2010: 23). This seemed to recognise the degree of discretion and control they hoped and expected to enjoy when professionally qualifed. In terms of self-legitimacy, the sharing of values between the practitioner and the organisation is perhaps somewhat elastic for this group, as they appeared to identify with some, but not all of the organisation’s offcial values and purposes. The views expressed by the TPOs coincided with those identifed in a similar study carried out with TPOs in areas of England (Annison et al., 2008) and practitioners in later studies (Deering, 2011; Mawby and Worrall, 2013). It is of interest that they were also shared by a small group of individuals who had joined the Probation Service some time previously but moved out of the service and into the private sector (Deering et al., 2014). This study interviewed a small sample (n = 6) of former probation practitioners and managers about why they had joined probation and why they had left and moved into the third and/or private sectors. They expressed their reasons for joining in very similar ways to the TPOs, namely an inherent interest in working with people experiencing problems and in trouble

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with the criminal justice system and a desire to ‘make a difference’ by seeking to assist them in their rehabilitation. As with TPOs, there was no mention (with one exception) of wishing to work within the public sector or that legitimacy of probation depended upon it being part of the state. Of course, one reason for this might have simply been the ‘taken-for-grantedness’ of the service being within the state system at that time. However, when talking about their reasons for leaving, respondents did refer to the service changing in ways which reduced their attachment to it as an organisation. Interestingly, these related to a more top-down managerialist approach designed to deliver ‘punishment in the community’ which they felt had been introduced into the service in recent decades (Deering et al., 2014: 239) and which has been discussed elsewhere (Deering, 2011; Deering and Feilzer, 2017; Deering and Feilzer, 2018). This control from the centre had resulted in probation ‘going stale’ and becoming more bureaucratic, less innovative and less ‘hands on’ than the service they had joined had been (Deering et al., 2014). The on-line survey mentioned earlier (Deering and Feilzer, 2015) of over 1,300 probation staff (practitioners, administrative staff and managers) sought views on the (at the time) forthcoming destruction of the unifed service under Transforming Rehabilitation (TR) in 2014–15. The survey asked about reasons for joining the service and its values, before considering prospects for the future. Responses were overwhelmingly consistent with studies mentioned earlier, focusing on a desire to work with people to ‘make a difference’ by providing ‘help’ in a broad sense that would promote their rehabilitation and thereby reduce re-offending. People were seen as capable of change and the Probation Service a suitable organisation to promote such change (Deering and Feilzer, 2015: 16–17). Respondents also acknowledged the importance of public protection, but this was not seen as an overriding aim, but rather one that could be achieved via rehabilitation and reduced offending. Similarly punishment was only mentioned by four (out of 1,300 plus) respondents. It is notable that these results replicated other studies, which, when taken together, indicated staff joining the service across a signifcant length of time due to a: genuine interest in people whose lives have often been characterised by disadvantage and who have made poor choices which have adversely affected victims, the wider community, and themselves. Respondents wished to use interpersonal and other skills to help effect change and in this way wish to ‘make a difference’. It also seems apparent that the offering of such help was not (and perhaps has never been) based on unconditional assistance; rather it has been offered with a view to rehabilitation and reduced offending. (Deering and Feilzer, 2015: 19)

Who should do probation work? As mentioned, the question of ‘ownership’ (i.e. whether the Probation Service and indeed any element of the criminal justice system should be within the public sector) might also be linked to self-legitimacy. The research evidence is not extensive and

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seems inconclusive. For McNeill and Robinson (2013) this question is likely to have an impact upon the professional relationship between practitioner and probationer and hence internal legitimacy, but studies looking at private prisons and tagging suggested this was less important (Crawford and Hucklesby, 2013; Hucklesby, 2013). However, the TR survey mentioned earlier (Deering and Feilzer, 2015) revealed a strong trend in responses that attached considerable importance to the question of ownership. Some 71% of respondents felt that it did matter ‘who did probation work’ irrespective of the quality of that work (Deering and Feilzer, 2015: 85). This view was based in a strong belief that punishment should be the reserve of the state, that justice is a ‘public good’ and that the private sector’s purpose was ultimately the making of proft, which would result in all its other values being subsumed therein. Those delivering this work [probation] need to be free from the pressures of profit and [need to be] focussed on offering good risk management and support to those individuals. Probation has to be accountable not to shareholders but to society as a whole. (Deering and Feilzer, 2015: 84–85) It should be driven by public service not profit. This is not a product/ commodity, it’s about people’s lives, liberty, and security this should not be bought and sold like a loaf of bread. (Deering and Feilzer, 2015: 88) Further to these normative views, there were more pragmatic responses about the effciency and effectiveness of the post-TR Probation Service. Respondents saw private organisations as less interested in quality or notions of ‘professionalism’ and that, apart from the issue of ownership, the service overall was bound to become less effcient and effective as it fragmented, divided between different organisations with very different ethos and cultures. Probation was seen as a high-performing public service with a qualifed, well-trained workforce whose expertise and experience was to be discarded under TR with an inevitable reduction in quality (Deering and Feilzer, 2015: 92).

Self-legitimacy under pressure – change from above, Transforming Rehabilitation and a dividing service Having reviewed self-legitimacy and the views of a range of trainees and practitioners, this chapter now argues that self-legitimacy is likely to have been under pressure for some time, preceding TR. Nevertheless, there seems little doubt that TR exacerbated and accelerated feelings of dissatisfaction amongst staff about the direction in which probation has been forced to travel by government. This has affected the ‘correlates of self-legitimacy’ (Bradford and Quinton, 2014) to the extent that it seems likely that many staff feel their attachment to the service and its modes of practice has diminished.

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As discussed, the study of two cohorts of TPOs (Deering, 2010) identifed what might be called ‘traditional’ reasons for joining the service, but even at the earliest stages of their careers, some respondents identifed something of a divergence between their own values and those of the service. TPOs did seem to have a clear notion of the views of government, but at that time seemed comfortable enough with being able to practice in ways that presumably did not compromise their own ideals too much. However, the study concluded with a consideration of what this might mean for the future: Whilst respondents recognised the government’s agenda they do not appear to have joined to follow it to the letter, but rather to acknowledge and work with it, with something of a different emphasis, particularly around what they regard as the purposes of the system and their role as practitioners. . . . The potential for a degree of organisational and personal strain must exist if practitioners continue to hold views about probation values and the purpose of the service which are increasingly at odds with a government agenda that emphasises offender management and control, punishment and the protection of the public. (Deering, 2010: 23) This strain was evident in a number of responses, one individual commenting that, in his view, the government saw the role of practitioners as: scapegoats, controllers of criminals [and] data inputters.3 Similarly, qualifed and often very experienced practitioners interviewed at a similar time (Deering, 2011) were expressing similar ideas but they remained optimistic that an empathic, humanistic practice that employed relationship skills to assist individuals live more productive and pro-social lives could continue. They recognised that for some time government had been intent on moving practice to a managerialist process-driven endeavour, focused on risk management and punishment in the community, something that was causing them concern, but at that time, there was little or no expression of a desire to leave the service as a result. However, one practitioner did record what he saw as the emergence within the service of the ‘good offcer’, someone regarded by management as effcient and effective at process and administration, rather than being able to focus on spending time developing a professional, empathic relationship with individuals (Matthews, 2009). The conclusions outlined in the 2011 study were that the service was perhaps at a crossroads in terms of practitioners’ attachment to it: Practitioners, at least as represented by these respondents hold out hope of a more constructive and positive future, one based in an effective, empathic professional relationship that utilises evidence based practice to design interventions that can help achieve behavioural change. There is a strong belief in

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the ability of individuals to change; perhaps the most important decision to be made is by the new government; does it wish to pursue toughness, contestability and a punitive agenda, or does it wish to journey along (and fund) the complex road to effectiveness via a positive, curious, humanistic practice? (Deering, 2011: 188) These ideas were further explored in the TR survey mentioned (Deering and Feilzer, 2015) and responses indicated that the proposed changes brought forth strong expressions of anger and disillusion. The study also considered the notion of the ‘probation ideal’ asking the question whether this was being placed under threat by organisational and structural changes that had undermined staff feelings of selflegitimacy. As mentioned, our respondents felt that probation’s values had been ‘under threat’ for some time due to top-down changes and that they feared for the impact of TR, regarding this as likely to exacerbate the situation: over the last (roughly) 20 years, probation values have come under pressure from government promoting its new agendas of punishment, public protection, risk, and enforcement. Moreover, this ‘decline’ in values (as it is seen by many respondents) has accelerated more recently and reached a peak with TR. There was, therefore, [in some of the views expressed by respondents] something of a sub-narrative of change and decline and of individuals having to ‘hang onto’ and defend their own values in the face of a changing government agenda. (Deering and Feilzer, 2015: 30) Respondents were also asked whether working within the service had lived up to their expectations. A small majority (51%) said it had ‘partly’, with 38% replying that it had and the remaining 11% saying that it had not (Deering and Feilzer, 2015: 40). However, from this mixed picture a suggestion emerged that whilst respondents remained committed to the basics of the job (developing relationships to facilitate change) they felt less attached to the organisation, something also identifed in other studies that found probation practitioners pursuing their ideals, in spite of the changes to the organisation (Farrow, 2004; Napo, 2007; Robinson and Burnett, 2007; Mawby and Worrall, 2013). As a result of these changes, a minority of the sample were considering leaving the profession, but clearly many more were expressing dissatisfaction with the direction the service had been taking which was likely to be exacerbated under TR. Interestingly, these reasons were similar to those cited by the small sample of individuals who had left the service some years prior to TR to join the private sector, arguing that, amongst other things, less bureaucracy and managerialism would have allowed them to be more creative in their work (Deering et al., 2014). A further element emerging from these studies was the view of practitioners of a service dividing to some extent in terms of the views and values of practitioners and management. In some cases, the latter were identifed by the former as being

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more accepting of new directions for the service imposed by government (Deering, 2011; Robinson et al., 2014). One study clearly identifed this phenomenon when proposed TR changes brought forth strong expressions of anger and disillusion. Management were regarded as: complicit in the changes to probation; of becoming removed from frontline practice, submitting to managerialist tendencies; and even oppressive and bullying behaviour towards practitioners in their pursuit of targets and outputs, rather than the quality of supervision and outcomes. (Deering and Feilzer, 2015: 34)

The impact of TR It is clearly the case that many of the fears expressed in these interviews about TR did come to pass. Reports from the Probation Inspectorate (HMIP) raised signifcant concerns about the effciency and effcacy of post-TR practice, mainly within the CRCs, but also to a lesser extent within the NPS (Deering and Feilzer, 2017). Problems were found with the levels and content of reporting, the provision of programmes and risk assessment and public protection (e.g. HMIP, 2016a, 2016b, 2017; National Audit Offce, 2016). Moreover, other studies concluded that TR had a deleterious impact upon practitioner morale in a number of ways. For example, in a large-scale study from within, Robinson et al. (2016) observed the transformation of a probation trust into a CRC. The transition was a time of considerable stress that raised many issues related to self-legitimacy and the study identifed a number of themes, such as concerns over status, feelings of loss and CRCs becoming ‘second-class probation’, but the most important was the experience of ‘liminality’ (Robinson et al., 2016: 161), of being caught between the old and the new. Combined with concerns of being ‘tainted’ by private sector values and priorities, respondents were seen as likely to have to take time to consider whether or not they could continue to ft into the CRC (Robinson et al., 2016: 174–175; Deering and Feilzer, 2017). Similarly, a study of the public sector NPS staff revealed feelings of stress and de-professionalisation, with some staff considering leaving the profession (Kirton and Guillame, 2015). Other studies looking at aspects of practice post-TR identifed the likelihood of increased stress levels for NPS staff as a result of working almost exclusively with high risk of harm individuals (Phillips et al., 2016), obstacles to the development of good working relationships between staff and supervisees in CRCs (McDermott, 2016) and diffculties expected in inter-agency working between CRCs, the NPS and the courts (Dominey, 2016). Indeed, the considerable problems experienced by the CRCs after TR resulted in remarkable developments in 2017–18, only a few years since the new system had been introduced. The House of Commons Justice Select Committee responded to concerns by carrying out an inquiry, eventually delivering a damning report in 2018 (House of Commons Justice Committee, 2018) which called for a thorough review of TR. In July 2018, the Justice Secretary, David Gauke, announced that

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the existing CRC contracts would be ended two years early, in 2020 and that new contracts would be put out to tender. In launching a consultation document, Gauke announced that the number of CRC contracts would be reduced from 21 to 10 within England. More interestingly, in Wales, the CRC caseload would be transferred to the Wales NPS, effectively re-creating a united, public sector probation service in Wales, although some aspects of service delivery would continue to be contracted out (Ministry of Justice, 2018). Despite this move, levels of dissatisfaction with TR prompted a further change. In June 2019, the government issued a ‘proposed future model’ for the service that would return all supervisory functions to the public sector, in an enlarged NPS (HMPPS 2019). However, a signifcant rump of marketised practice will remain, as each new NPS area will have a partnership agreement with a private or third sector organization, under which the latter will provide certain interventions, including accredited programmes and unpaid work.

Conclusion What then are the implications for legitimacy of recent decades of change and more recently, the effects of marketisation and part-privatisation? In terms of external legitimacy, there are clear signs of the reduction in the confdence that the magistrates’ courts seem to have in community orders, given their reduced use over the past decade, particularly of accredited programmes (Carr, 2018a, 2018b; du Mont and Redgrave, 2017). Since the advent of TR, the diffculties experienced by the CRCs and, to a lesser extent, the NPS have had a similar impact upon the service’s reputation. The Magistrates’ Association (2017), in its response to the Justice Select Committee’s TR inquiry stated that courts had received inadequate information about their local CRCs and were consequently unsure that community orders would address the purposes of sentencing. This negative effect was also reported by the Centre for Justice Innovation in its study of the relationship between CRCs and the courts following TR (Centre for Justice Innovation, 2018). Furthermore, whilst there is a lack of evidence relating to internal legitimacy post-TR, we do know that probation supervisees value the quality of the professional relationship and this is regarded by some studies as a vital ‘site for legitimacy’ (McNeill and Robinson, 2013), a view shared by many practitioners (Deering and Feilzer, 2015). Research outlined earlier mentions real or potential threats to the nature and quality of this relationship, mainly within the CRCs and this may be having an impact upon internal legitimacy. Of course the recent changes announced by HMPPS (2019) are likely to have a further impact upon legitimacy, given the return of many functions to the enlarged public sector NPS, but at this early point it is impossible to know whether this might be in a more positive direction. In terms of self-legitimacy, changes resulting from TR resulted in the selflegitimacy of staff being at least placed under considerable pressure (Deering and Feilzer, 2017; Robinson et al., 2017). Going back to Bradford and Quinton’s

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correlates of self-legitimacy (2014) it seems likely that each of them has been adversely affected. It is perhaps the congruence between the values of the organisation and staff that has come under the greatest pressure for some time and prior to TR. In turn, TR exacerbated the situation, in terms of the transfer from the public sector and the focus upon law enforcement, punishment, public protection and managerialism at the expense of a more generalised notion of rehabilitation. Seemingly, the commitment of some staff to the organisation was disrupted and this may have a knock-on effect upon a feeling of belonging to an organisation that has a special role, underpinned by a strong set of shared values. Moreover, this disruption of self-legitimacy may mean that some staff are less inclided to carry out ‘legitimation work’ (Ugelvik, 2016) on behalf of their organisations, which in turn may have affected external and internal legitimacy. For practitioners, perhaps self-legitimacy is the most important of the ‘legitimacies’ as it allows an individual to continue to practice in diffcult times and even without public interest and apparent support. What does the likely pressure upon self-legitimacy mean in terms of the morale and commitment of practitioners and hence to practice and a service to the public? At this stage it is diffcult to quantify levels of possible dissatisfaction, although it is known that staff had been leaving the NPS since TR (Kirton and Guillame, 2015), resulting in a shortage of qualifed staff, although the situation was less clear within the CRCs. Although the government responded to widespread concern about probation practice post-TR, launching a consultation intending to make contractual changes to TR (Ministry of Justice, 2018), it is doubtful whether this would have resulted in signifcant change to conditions for self-legitimacy. This is due to the consultation document re-affrming the ‘sound principles’ of the original TR document in terms of the ‘strengths of the mixed market approach’ (Ministry of Justice, 2018: 3). Indeed most of these initial proposals were concerned with organisational and managerial adjustments, presumably aimed at restoring external legitimacy amongst the courts, victims and public through improved effciencies (Ministry of Justice, 2018: 5). However, these proposals were not seen as going far enough and, as mentioned, a further document has proposed the reunifcation of an enlarged NPS to cover all supervisory functions. However, in one important way the government has re-asserted the TR model, namely by retaining a marketised element to deliver certain interventions. The extent to which this addresses the concerns of staff about the direction of practice arising from TR remains to be seen. As a result, the continuing impact of changes to probation in the past decade upon self-legitimacy is now even more diffcult to predict

Notes 1 For convenience, on occasions reference is made to the work of practitioners in both the NPS and the CRCs as ‘probation practice’. 2 For convenience, the phrase ‘Probation Service’ occasionally refers to both the pre-TR unified service and to the post-TR NPS and CRCs. 3 This quote does not appear in Deering (2010) but is taken from the original data.

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Bibliography Annison, J., Eadie, T. and Knight, C. (2008) ‘People First: Probation Offcer Perspectives on Probation Work’, Probation Journal, 55(3), pp. 259–272. Beetham, D. (1991) The Legitimation of Power. Basingstoke: Palgrave Macmillan. Bottoms, A. (2001) ‘Compliance and Community Penalties’, in Bottoms, A., Gelsthorpe, L. and Rex, S. (eds.) Community Penalties: Changes and Challenges. Cullompton: Willan. Bourdieu, P. (1977) Outline of a Theory of Practice. Cambridge: Cambridge University Press. Bradford, B. and Quinton, P. (2014) ‘Self-legitimacy, Police Culture and Support for Democratic Policing in an English Constabulary’, British Journal of Criminology, 54, pp. 1023–1046. Burke, L., Millings, M. and Robinson, G. (2017) ‘Probation Migration(s): Examining Occupational Culture in a Turbulent Field’, Criminology and Criminal Justice, 17(2), pp. 192–208. Carr, N. (2018a) ‘Editorial: Punishment, Sentencing and Probation’, Probation Journal, 65(3), pp. 249–251. Carr, N. (2018b) ‘Editorial: Transforming Rehabilitation? Destination Unknown’, Probation Journal, 65(1), pp. 3–6. Centre for Justice Innovation. (2018) Renewing Trust: How We Can Improve the Relationship Between Probation and the Courts. London: CJI. Crawford, A. and Hucklesby, A. (eds.) (2013) Legitimacy and Compliance in Criminal Justice. Abingdon: Routledge. Deering, J. (2010) ‘Attitudes and Beliefs of Trainee Probation Offcers – A New Breed?’, Probation Journal, 57(1), pp. 9–26. Deering, J. (2011) Probation Practice and the New Penology: Practitioner Refections. Aldershot: Ashgate. Deering, J. and Feilzer, M.Y. (2015) Transforming Rehabilitation: Is Privatisation the End of the Probation Ideal? Bristol: Policy Press. Deering, J. and Feilzer, M.Y. (2017) ‘Questions of Legitimacy in Probation Practice after Transforming Rehabilitation’, Howard Journal of Criminal Justice, 56(2), pp. 158–175. Deering, J. and Feilzer, M.Y. (2018) ‘Hollowing Out Probation? The Roots of Transforming Rehabilitation’, Probation Journal, pp. 1–17. https://doi.org/10.1177%2F0264550518820119 Deering, J., Feilzer, M.Y. and Holmes, T. (2014) ‘The Transition from Public to Private in Probation. Values and Attitudes of Managers in the Private Sector’, Probation Journal, 61(3), pp. 234–250. Dominey, J. (2016) ‘Fragmenting Probation: Recommendations from Research’, Probation Journal, 63(2), pp. 136–143. du Mont, S. and Redgrave, H. (2017) Where Did It All Go Wrong? A Study into the Use of Community Sentences in England and Wales. London: Crest Advisory. Farrow, K. (2004) ‘Still Committed after All These Years? Morale in the Modern-Day Probation Service’, Probation Journal, 51(3), pp. 206–220. Her Majesty’s Inspectorate of Probation. (2016a) Quality and Impact Inspection: The Effectiveness of Probation Work in Durham. London: Her Majesty’s Inspectorate of Probation. Her Majesty’s Inspectorate of Probation. (2016b) Transforming Rehabilitation: Early Implementation 5. London: Her Majesty’s Inspectorate of Probation. Her Majesty’s Inspectorate of Probation. (2017, April) Quality and Impact Inspection: The Effectiveness of Probation Work in Gwent. London: Her Majesty’s Inspectorate of Probation. Her Majesty’s Prison and Probation Service. (2019) The Proposed Future Model for Probation – A Draft Operating Blueprint. London: HMPPS

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Home Offce. (2001) A New Choreography: An Integrated Strategy for the National Probation Service for England and Wales. London: Home Offce. Hough, M., Jackson, J., Bradford, B., Myhill, A. and Quinton, P. (2010) ‘Procedural Justice, Trust and Institutional Legitimacy’, Policing: A Journal of Policy and Practice, 3, pp. 203–210. Hough, M. and Roberts, J. (2004) Youth Crime and Youth Justice: Public Opinion in England and Wales. Bristol: Policy Press. House of Commons Justice Committee. (2018) Transforming Rehabilitation. London: House of Commons. Hucklesby, A. (2013) ‘Compliance with Electronically Monitored Curfew Orders: Some Empirical Findings’, in Crawford, A. and Hucklesby, A. (eds.) Legitimacy and Compliance in Criminal Justice. Abingdon: Routledge. Kirton, G. and Guillame, C. (2015) Employment Relations and Working Conditions in Probation after Transforming Rehabilitation – With a Special Focus on Gender and Union Effects. London: Queen Mary, University of London. Magistrates’ Association. (2017) Response to the Transforming Rehabilitation Inquiry. Available at: www.magistrates-association.org.uk/sites/magistrates-association.org.uk/fles/08%20 Transforming%20Rehabilitation%20JSC%20Inquiry%20Response%2016%2011%2017. pdf (Accessed: 13th February 2019). Matthews, J. (2009) ‘People First: Probation Offcers’ Perspectives on Probation Work: A Practitioner’s Response’, Probation Journal, 56(1), pp. 61–67. Mawby, R.C. and Worrall, A. (2013) Doing Probation Work: Identity in a Criminal Justice Occupation. London: Routledge. McDermott, S. (2016) ‘Probation Without Boundaries? “Agile Working” in the Community Rehabilitation Company “Transformed” Landscape’, Probation Journal, 63(2), pp. 193–201. McNeill, F. and Robinson, G. (2013) ‘Liquid Legitimacy and Community Sanctions’, in Crawford, A. and Hucklesby, A. (eds.) Legitimacy and Compliance in Criminal Justice. Abingdon: Routledge. Ministry of Justice. (2013) Transforming Rehabilitation, A Revolution in the Way We Manage Offenders. London: Ministry of Justice. Ministry of Justice. (2018) Strengthening Probation, Building Confdence. London: Ministry of Justice. Murphy, K., Bradford, B. and Jackson, J. (2015) ‘Motivating Compliance Behaviour Among Offenders: Procedural Justice or Deterrence?’, Criminal Justice and Behaviour, 43(1), pp. 102–118. Napo. (2007) Changing Lives: An Oral History of Probation. London: Napo. National Audit Offce. (2016) Transforming Rehabilitation. London: National Audit Offce. Phillips, J., Westaby, C. and Fowler, A. (2016) ‘“It’s Relentless”. The Impact of Working Primarily with High-risk Offenders’, Probation Journal, 63(2), pp. 182–192. Roberts, J. and Hough, M. (2005) Understanding Public Attitudes to Criminal Justice. Maidenhead: Open University Press. Robinson, G. (2008) ‘Late-Modern Rehabilitation: The Evolution of a Penal Strategy’, Punishment and Society, 10(4), pp. 429–445. Robinson, G., Burke, L. and Millings, M. (2016) ‘Criminal Justice Identities in Transition: The Case of Devolved Probation Services in England and Wales’, British Journal of Criminology, 56(1), pp. 161–178. Robinson, G., Burke, L. and Millings, M. (2017) ‘Probation, Privatisation and Legitimacy’, The Howard Journal of Crime and Justice, 56(2), pp. 137–157.

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Robinson, G. and Burnett, R. (2007) ‘Experiencing Modernisation: Frontline Probation Perspectives on the Transition to a National Offender Management Service’, Probation Journal, 54(4), pp. 318–337. Robinson, G., Priede, C., Farrall, S., Shapland, J. and McNeill, F. (2014) ‘Understanding “Quality” in Probation Practice: Frontline Perspectives in England and Wales’, Criminology and Criminal Justice, 14(2), pp. 123–142. Ugelvik, T. (2016) ‘Techniques of Legitimation: The Narrative Construction of Legitimacy Among Immigration Detention Offcers’, Crime, Media, Culture, 12(2), pp. 215–232. User Voice. (2015) Transforming Rehabilitation: The Operational Model from the Service User’s Perspective. Available at: www.uservoice.org/wp-content/uploads/2016/04/%E2%80%9 CTransforming-Rehabilitation%E2%80%9D-The-operational-model-from-the-serviceuser%E2%80%99s-perspective-PDF.pdf (Accessed: 9th December 2016).

14 WHAT DOES PRIVATISATION MEAN FOR PROBATION SUPERVISION? Jane Dominey

Introduction This chapter discusses the community supervision of offenders under privatisation. In particular it considers the evidence (from research and from inspection) about the supervision practice of the Community Rehabilitation Companies (CRCs) created in 2015 by the Transforming Rehabilitation (TR) reforms. The chapter examines the importance of professional relationships and organisational structure to the quality of probation work. It explores ways in which, if at all, the shortcomings and strengths of supervision can be attributed to the privatisation of probation work and identifes the contribution of other factors, and particularly reductions in public spending, to the quality of practice.

Transforming rehabilitation: the creation of CRCs The background to the TR reforms, their political context and organisational shape are detailed in a number of chapters in this collection. This chapter is about the work of the CRCs and, in particular, that aspect of the work that is about supervising community orders and licences. CRCs were formed by the split of the previously existing Probation Trusts into an organisation (the CRC) responsible for the supervision of those individuals deemed to pose a low or medium risk of causing serious harm and an organisation (the National Probation Service) responsible for the provision of advice to courts along with supervision of individuals assessed as high risk. This split, along with the notion that risk assessment can be used to allocate service users between providers, was one of the contentious elements of the reforms (Justice Committee 2018; Canton and Dominey 2018). Also contentious were private sector involvement in probation work and the use of a payment by results (PbR) mechanism as part of CRC funding arrangements.

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The TR reforms divided England and Wales into 21 ‘contract package areas’ (Ministry of Justice 2013). Probation Trusts ceased to exist in June 2014, and, following a process of tendering and competition, the Ministry of Justice signed the contracts with the new owners of the CRCs in February 2015. Two private companies emerged as particular winners in this process: Sodexo Justice Services (with ownership of six CRCs) and Interserve (with fve). All but one CRC contract was awarded to a private company, the single exception being the Durham Tees Valley CRC which is owned by a consortium of public and voluntary sector organisations. Privatisation brings new stakeholders to probation in the shape of senior executives and shareholders responsible for the business health and proftability of the owning companies. CRCs would have to fnd ways of being commercially viable. The use of PbR mechanisms is not unique to the Probation Service; funding models that reward providers for achieving prescribed outcomes can also be found in the areas of health, family support and drug treatment (ICF 2015). The use of PbR for probation work was controversial from the outset for a number of reasons: a simple binary measure of re-offending was not seen to capture the ‘result’ of a period of supervision, the introduction of PbR appeared to incentivise CRCs to focus on work with service users who were already most likely to do well, and attributing successful outcomes to the work of CRCs neglected the importance of the partnership work (for example, with health and housing) that is a necessary part of community supervision (Fox and Albertson 2012). CRCs began their lives with a staff group inherited from their predecessor Probation Trusts, bringing skills, qualifcations and experience acquired before the TR reforms. Some staff opted for work in the CRC: for example senior managers who were attracted to the possible fexibility promised by TR, committed to work with lower-risk but high-need service users, and closely involved in developing new practice models for CRCs. However, many CRC staff would have preferred to work for the NPS (seeing the public sector as a more certain and secure employer) and were allocated only reluctantly to CRCs (Robinson et al. 2016). In many (although not every) CRC, these concerns about job security were well founded as new owners embarked on restructuring programmes with associated job cuts (Justice Committee 2018). Each CRC owner has its own operating model (the process through which it delivers its range of services). These models were developed as part of the competition process, form part of the contract between the CRC and the Ministry of Justice and lead to differences of approach between CRCs. For example, the operating model developed by Working Links (the company awarded three CRC contracts in Wales and the southwest of England) prioritised the creation of community hubs where the CRC would work alongside other agencies providing a holistic service intended to support the desistance process and build community links likely to outlast the period of statutory supervision. The Interserve model stressed its roots in the desistance literature with a focus on providing a service tailored to the needs of the individual (Fox et al. 2018). The extent to which these operating models were implemented as intended will be considered later in the chapter.

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It is notable that a number of CRC operating models also anticipated styles of supervision that moved away from traditional one-to-one sessions between probation worker and service user in a private interview room. Systems of telephone reporting were instituted for supervisees deemed low priority, and venues with open plan meeting spaces replaced more formal offces (Justice Committee 2018; Bean 2019). These arrangements formed part of the contracts agreed with the Ministry of Justice and, in part, refected the CRCs’ need to manage their expected workload within their anticipated contractual payments. The TR reforms required the Probation Service to do more work for less money and they took place at a time when cutting public spending was a key government priority; the themes of privatisation and austerity are inextricably linked. The Offender Rehabilitation Act 2014 extended statutory post-release supervision to prisoners serving short sentences. This change added to the supervision caseload of the CRCs and was partially welcomed within the Probation Service for offering help to people who otherwise left prison with little practical support. However, concerns were raised about the punitive weight of statutory (rather than voluntary) post-release support (Cracknell 2018) and it was not at all clear how this new work would be funded (PA 2014). CRCs are not all the same. They began life with different owners, a variety of operating models, varying legacies from predecessor Probation Trusts, and senior managers and front-line practitioners with a mix of approaches and skills. As time passes these differences emerge and amplify with implications for the service user’s experience of supervision.

Probation supervision: what does good look like? As Shapland et al. (2012: 1) observe ‘ideas as to what is “quality” depend of course on what the key purposes for probation and for supervision within probation are thought to be’. Since probation has competing purposes (for example reducing re-offending, public protection, encouraging desistance, community safety), as well as distinct groups of stakeholders with varying priorities and perspectives (including supervisors and supervisees), the concept of quality eludes clear defnition and changes over time. Ideas of quality are necessarily bound up with concepts like effectiveness, values and ethics. This chapter considers the importance of three factors that are associated in the literature with good-quality supervision: relationships, organisational structures and resources. Probation supervision is a relational activity and the importance of the supervisory relationship is a consistent thread through the probation literature. The content of supervision does matter, and probation practice has gained from research into the effectiveness of programmes and interventions (Bonta and Andrews 2010), but the signifcance of the supervisory relationship emerges in research investigating all aspects of probation practice. Supervisors and supervisees point to the importance of relationships that demonstrate warmth, empathy, listening, fairness and encouragement. These characteristics are of value in themselves and are increasingly linked

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to positive probation outcomes. Good-quality supervisory relationships are associated with reducing re-offending (Dowden and Andrews 2004; Porporino 2010), encouraging desistance (Farrall and Calverley 2006; Burnett and McNeill 2005), improving compliance (Ugwudike 2010) and maintaining the legitimacy of community orders (McNeill and Robinson 2013). Canton (2012) makes the claim that establishing positive relationships with people who have offended is the distinctive contribution of probation work. Staff working in CRCs, therefore, need to be able to build positive supervisory relationships. This requires a balance of characteristics, skills and knowledge (Durnescu 2012). Supervisees appreciate supervisors who approach their work with warmth and empathy, who listen well, who are open and honest and who provide help with practical problems. As Burke et al. (2019) remind us this is not straightforward work; the supervisory relationship is about control as well as support. To what extent does the privatisation of probation work undermine the relational aspect of practice? Evidence from prison privatisation suggests that we ‘should not disregard the fact that some private prisons have succeeded in recruiting, training and managing staff in a manner that produces relatively humane and respectful prison environments’ (Crewe et al. 2011: 112). Similarly, we might expect to fnd CRCs successfully building organisations in which staff have the motivation and skills to create and sustain supportive relationships with service users. Supervisory relationships are not constructed in a vacuum. Organisational structure shapes and constrains the way that practitioners behave, and privatisation has played a signifcant part in setting the organisational structure of the CRCs. Effective probation practice requires an organisational culture which provides training and supervision for staff, and consistency and continuity for service users (Bonta and Andrews 2010). Good-quality relational practice is unlikely to be achieved by supervisors who are not confdent in their role and lack the support of their managers. Rapid staff turnover, poor morale and insuffcient investment in training all work against good practice. The quality of CRC practice depends in part on each company’s success in building and maintaining a stable and wellmotivated staff team. There is also a link between the quality of practice and the level of funding for the service. Insuffcient funding leads to high caseloads, and supervisors with large caseloads have less time to build relationships with supervisees. Supervision sessions become shorter and less frequent. High caseloads are also associated with poor morale and rising levels of stress. Staff with high workloads have less chance for the exercise of professional judgement and must rely more on technical processes and procedures (Robinson 2003). They develop coping mechanisms to manage the demands on their time and emotional energy (Burke et al. 2019). Probation outcomes depend not just on the level of funding for probation services, but also on the resources available in the wider community. Personal and professional relationships are important to the desistance process (McNeill et al. 2012) but so too are opportunities to develop social capital, to secure a home and a job, to receive mental health treatment and to have real hope for the future.

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Enabling supervisees to access practical help is an important task for supervisors, but one that is increasingly hard to achieve in communities that are experiencing austerity, poverty and inequality (Burke and Collett 2015).

Probation supervision: developing practice in CRCs Having identifed the importance of the interplay between relationships, organisational structure and resources to the quality of supervision, the chapter in this section examines the extent to which the practice of CRCs is developing to meet these criteria. It also considers the extent to which, where there are gaps, these are necessarily the consequence of privatisation. The evidence to support the argument comes from two sources: the fndings of HM Inspectorate of Probation (HMIP) and the limited amount of published research and commentary addressing the supervision practice of CRCs (see, for example McDermott 2016; Millings et al. 2019; Fox et al. 2018; Dominey 2018). Both sources of evidence have their shortcomings. There is, as yet, little academic empirical evidence about the quality of probation supervision following the TR reforms; there are no studies comparing work across the country or tracking experiences and outcomes for service users. HMIP has inspected the work of CRCs across England and Wales, assessing and rating each company’s performance in the areas of organisational delivery, case supervision, unpaid work and the Through the Gate service. HMIP’s fndings provide useful information about the state of probation supervision which (unlike the quality assurance work undertaken in-house by the Ministry of Justice) is publically available. HMIP highlights examples of good and poor practice. However, its approach to inspection (which is subject to consultation and debate [Kuipers 2017]) inevitably shapes its assessments of CRC performance. Its role is inspection rather than research.

Relationships As we saw earlier in the chapter, privatisation of services (including criminal justice services) does not inevitably lead to professional relationships that are poorer than those built by public sector workers. However, in order to build constructive relationships probation supervisors require a proper balance of time, skills and knowledge. There is reason to believe that CRC supervisors are not always suffciently well equipped and supported to create and sustain these relationships. Reports from HMIP comment on the risks to the relational aspects of practice caused by high caseloads (HMIP 2019b, 2019c) and the rapid turnover of supervising offcers leading to a loss of continuity or consistency for service users (HMIP 2016, 2017). Talking about relationship building makes little sense in cases where a supervisor and supervisee meet for two or three sessions spread over a couple of months and then the case is passed to a new worker. Decisions about the qualifcation and training profles of staff are a matter for each CRC; there is no requirement that a CRC employs a specifc proportion of

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probation offcer grade staff and no obligation that CRCs participate in the Professional Qualifcation in Probation (PQiP – the degree level work-based qualifcation led by HMPPS and delivered in partnership with universities). Inspection reports point to gaps in the skills and knowledge of CRC staff with supervising offcers (often Probation Service Offcers without the PQiP or its predecessor awards) working with cases beyond their level of competence and experience (HMIP 2019b) and without satisfactory access to training (HMIP 2019c). But there are positives, from both inspection and from research. Some CRCs have been notably more successful than others at retaining a stable, experienced and committed practitioner team (HMIP 2018b, 2019d) and in continuing to provide opportunities for staff training and professional development (HMIP 2018a, 2019d). Staff morale appears to vary across CRCs, with inspectors fnding some staff groups expressing pride in their organisation while other CRCs struggle with issues of poor leadership, rising levels of sickness absence and overreliance on agency staff. Across the country (and including at CRCs with signifcant staffng diffculties) there are supervisees speaking positively of their relationship with supervisors. Service users speaking to Fox et al. (2018) about their involvement in personalised offender management spoke of building friendly professional relationships with their supervisors. Similarly, individuals attending the community hubs studied by Dominey (2018) were almost universally positive about their supervising CRC workers, saying things like: Some [probation offices], it’s like, it’s just no good. But this one is just really good. The staff are the right staff for this kind of job, you know? She’s great for the type of person I am. She’s no nonsense and that keeps me in place. She’s very encouraging, she’s down to earth, and she doesn’t go round the houses. If she’s got something to say she’ll be direct and . . . so, she’s picked up on how I am quite quickly. She’s [supervising officer] a lovely lady and she listens to me. She doesn’t judge me, she helps me. Service users appreciated staff who listened to them and treated them with respect. They also valued supervision which provided practical help with problems and diffculties. Service users at the community hubs spoke positively about their interactions with staff at the hubs, but also stressed the importance of the help available from the range of agencies who were represented at the hub. Hubs could be more welcoming places to visit than traditional probation offces, but they also had the potential to be more useful. HMIP (2018a, 2019c) also identifes examples of strong partnership work enabling CRC service users to build a network of relationships with the potential to outlast the period of supervision. To sum up, evidence from inspection and from research identifes committed and motivated CRC staff, but points to signifcant problems caused by high workloads and insuffcient training and support.

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Organisational structures Much exasperation with the practice of CRCs stems not from lack of confdence in individual practitioners but from unhappiness with the implementation of the post-privatisation operating models. In many ways, the operating models developed as part of the bidding process for CRC contracts in 2014 have not lasted the test of time. HMIP (2019a) has been particularly critical of CRC operating models that do not have a central focus on the relationship between the supervisor and the supervisee. Ways of working that rely on telephone supervision (HMIP 2018a, 2019c) and on the use of open-plan meeting space that prevents conversation about confdential matters (HMIP 2018b) remain a persistent source of concern. Innovative ways of working, such as the use of community hubs, appear to have potential and are popular with service users when they work well (Dominey 2018; HMIP 2019a). At the end of the research interview, one service user interviewed by Dominey (2018) was asked if there was anything else he wanted to say. He replied ‘No, not really. It’s a good hub, it’s a good probation offce, it just does it right. This is how probation should be.’ Another summed up her experience of probation supervision at the community hub saying: ‘It’s nice. You got them all in the one room and they’re available. You’re not in an offcial surrounding, ringing up to access an appointment with these services. That kind of makes it further in the distance and harder to reach. Whereas, here, they’re all there and it’s all in the one room and you can hopscotch from one desk to the other. And, when I leave, I feel like I’ve achieved something – “I’ve got stuff done today!”’ However, CRCs have not found it easy to implement new practice models in consistent and comprehensive ways (HMIP 2019a, 2019c). The CRC operating models refect, in part, a desire to take advantage of the opportunities for innovation promised by privatisation. As part of the competition process, CRCs were keen to demonstrate their new thinking and also to distinguish themselves from rivals. As Robinson (2013) predicted, this has led to patchy provision with islands of creative practice set in a sea of routine work with high caseloads. For example, new ways of working in collaboration with the voluntary sector and local communities are logical and laudable, but CRCs have struggled to deliver these approaches. In response to mounting concerns about the practice of CRCs, the Ministry of Justice (2018) announced its intention to make changes to CRC contracts, ending them early (in 2020 rather than in 2022), introducing minimum standards for face-to-face meetings between supervisor and supervisee, and being more prescriptive about the way that CRCs approach offender assessment. CRCs have, in their short lives, existed in a constant state of change and uncertainty. The announcement of the early ending of the current contracts is part of this pattern. Instability is not simply an issue for organisations; it is felt in the process of supervision because it affects the motivation and morale of staff. It is an inevitable consequence of the TR model that staff will face further shifts of employer as contracts are re-tendered and as providers leave the market. Employees of the CRCs owned by the company Working Links have already had this experience;

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the fnancial failure of Working Links has seen their employment transferred to the company Seetec (Rees 2019). Chapters elsewhere in this collection discuss the impact of privatisation on the commodifcation of rehabilitation. CRC operating models may not have the generation of proft as their primary driver, but the organisational structure of CRCs and their link with the NPS and with voluntary sector organisations in their supply chains have led to new ways of thinking about services and interventions as items to be bought and sold. The NPS appears reluctant to buy CRC interventions viewing these as goods that were previously free (HMIP 2018c) and the penal voluntary sector grows resentful of providing services without funding (Clinks 2018). The theme of money, and particularly lack of money, has shaped post-privatisation development of probation supervision. This is a consequence of moving to commercial and competitive organisational structures, but it also follows from delivering public services at a time of signifcant spending cuts.

Resources CRCs are operating in an age of austerity. Even without the upheaval of TR, the Probation Service would have faced the unwanted challenge of doing more work with less money. CRC approaches to supervision were developed in part to be distinctive, but also in response to the need to manage within the funding provided by the Ministry of Justice contracts. Budget pressures play a part in the problematic quality of probation supervision, a point acknowledged by the Ministry of Justice (2018) and HMIP (2019a). The position for CRCs is particularly complicated. The contractual arrangements with the Ministry of Justice provide the CRC with funding based (in larger part) on workload volumes and (in smaller part) on PbR. CRCs also pay fnancial penalties for failing to meet performance measures. A number of the assumptions made (about workload and re-offending rates) when the contracts were let have proved to be inaccurate and, as a result, CRCs have found themselves fnancially unstable and requiring additional money from the Ministry of Justice (NAO 2019). The pressure to work within tight budgets and to avoid penalties for missing performance targets has consequences for the quality and integrity of supervision. HMIP (2019c: 14) described the pressure on staff to avoid assessing supervisees as higher risk (and hence requiring more resources) as ‘an immutable line crossed’. Away from the criminal justice system adult social care provides a relevant, but not encouraging, example of a public service outsourced on the basis that marketisation brings both effciency and the potential for innovation. Rubery et al. (2013) argue that the evidence from this sector shows that government commissioning results in arrangements that prioritise cost above quality. In adult social care, as for CRCs, minimising cost means reducing the amount of money spent on staff. Fewer care staff means shorter home visits, lack of payment for travelling time between visits, longer delays in setting up care packages and increased staff turnover. Hayes

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and Moore (2017: 330) explicitly make the link between austerity, commodifcation and quality of service, explaining ‘under conditions of austerity, homecare services are reconfgured and care itself is reductively constructed as a consumption of time, service users are constructed as needy (or greedy) time-consumers and homecare workers as resource-wasting time-takers.’ The Ministry of Justice has faced a real-terms budget cut in the period 2010/11 to 2019/20 of 40 per cent. It is not the only part of government that has been required to manage public sector austerity. The Ministry of Housing, Communities and Local Government and the Department for Work and Pensions have faced cuts of a similar proportion over the same time period (Institute for Fiscal Studies 2017). So many community resources that underpin probation supervision have been shrinking since the start of this decade. The well-documented shortcomings of Through the Gate services for people who have served a short sentence of imprisonment (Millings et al. 2019; CJJI 2016) stem in part from organisational, structural and funding problems within prisons and the CRCs. Crucially, they also stem from the lack of infrastructure in the wider community. The identifcation and assessment of the needs of prisoners could be improved, but meeting these needs often falls beyond the reach of the CRC. The task for supervisors is to create a plan in partnership with other organisations in the community, a task made harder if those organisations are themselves increasingly without resources. People leaving prison face particular problems securing accommodation, will rarely be accepted by local authorities as in priority need and are at a disadvantage competing for limited and expensive rental properties. CRCs have the job of providing housing advice but cannot create homes (or even temporary rooms) that do not exist. As one frustrated member of staff at a voluntary sector organisation providing mentoring support for former prisoners said: I’m not buying tents because I’m a tent enthusiast. I’m buying tents because people are being released homeless.

Conclusion Privatisation of criminal justice in general, and of the Probation Service in particular, is opposed on grounds of principle and practice. Other chapters in this collection discuss the issues of principle, exploring the implications of introducing proft into probation work and re-shaping rehabilitation as a commodity. The focus of this chapter has not been on privatisation as a political or ideological strategy, but rather on its consequences for the quality and nature of probation supervision. We have seen that probation supervision thrives in an environment where supervisor and supervisee build a change-enabling relationship, where the organisation provides a structure in which staff are supported and encouraged, and where the wider community provides the resources and opportunities necessary for recovery and desistance. The current environment for supervision falls some way short of this. Probation has suffered the twin and entwined assaults

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of privatisation and austerity. Supervision is harmed when it is delivered by staff who have high caseloads, are unable to link with necessary resources and work in unstable and uncertain organisations. The post-TR model for probation services builds in this instability; the judgement of HMIP (2019a: 3) that it is ‘irredeemably fawed’ was not made lightly. The pressure is building on the Ministry of Justice to reconfgure probation services yet again. Further reorganisation has the potential to address the mistakes of the recent past but will inevitably create another wave of insecurity for front-line probation staff. The return of the Probation Service to the public sector has many advocates, but does not guarantee high-quality supervision. Recruiting, training and retaining the right number of staff, managing them well and enabling them to work creatively are not intrinsic inevitabilities of public sector delivery. The argument in this chapter is not that CRCs are always and inevitably unable to provide good-quality supervision. There is evidence (from research and from inspection) of positive practice being delivered by skilful committed staff and appreciated by service users. However this is happening in spite, not because, of privatisation and further organisational upheaval may be a necessary ingredient for practice improvement.

Bibliography Bean P (2019) Probation and Privatisation Abingdon: Routledge Bonta J and Andrews D (2010) ‘Viewing Offender Assessment and Rehabilitation Through the Lens of the Risk-needs-responsivity Model’ in F McNeill, P Raynor and C Trotter (eds) Offender Supervision: New Directions in Theory, Research and Practice Cullompton: Willan Burke L and Collett S (2015) Delivering Rehabilitation: The Politics, Governance and Control of Probation Abingdon: Routledge Burke L, Collett S and McNeill F (2019) Reimagining Rehabilitation: Beyond the Individual London: Routledge Burnett R and McNeill F (2005) ‘The Place of the Offcer-Offender Relationship in Assisting Offenders to Desist from Crime’ Probation Journal 52 (3) 221–242 Canton R (2012) ‘The Point of Probation: On Effectiveness, Human Rights and the Virtues of Obliquity’ Criminology and Criminal Justice 13 (5) 577–593 Canton R and Dominey J (2018) Probation (2nd ed) London: Routledge Clinks (2018) Under Represented, Under Pressure, Under Resources: The Voluntary Sector in Transforming Rehabilitation [available online at www.clinks.org/sites/default/fles/2018-10/ clinks_track-tr_under_fnal-web.pdf, accessed 16/4/19]. Cracknell M (2018) ‘Post-release Reforms for Short Prison Sentences: Re-legitimising and Widening the Net of Punishment’ Probation Journal 65 (3) 302–315 Crewe B, Liebling A and Hulley S (2011) ‘Staff Culture, Use of Authority and Prisoner Quality of Life in Public and Private Sector Prisons’ Australian & New Zealand Journal of Criminology 44 (1) 94–115 Criminal Justice Joint Inspection (CJJI) (2016) An Inspection of Through the Gate Resettlement Services for Short-Term Prisoners: A Joint Inspection by HM Inspectorate of Probation and HM Inspectorate of Prisons [available online at www.justiceinspectorates.gov.uk/cjji/wpcontent/uploads/sites/2/2016/09/Through-the-Gate.pdf, accessed 17/4/19] Dominey J (2018) The Use of Community Hubs to Deliver Probation Supervision. Report commissioned by Working Links from the Centre for Community, Gender and Social Justice,

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Institute of Criminology, University of Cambridge [available online at www.ccgsj.crim. cam.ac.uk/pdf/community-hubs, accessed 12/3/19] Dowden C and Andrews D (2004) ‘The Importance of Staff Practice in Delivering Effective Correctional Treatment: A Meta-Analytic Review of Core Correctional Treatment’ International Journal of Offender Therapy and Comparative Criminology 48 (2) 203–214 Durnescu I (2012) ‘What Matters Most in Probation Supervision: Staff Characteristics, Staff Skills or Programme?’ Criminology and Criminal Justice 12 (2) 193–216 Farrall S and Calverley A (2006) Understanding Desistance from Crime Maidenhead: OUP Fox C and Albertson K (2012) ‘Is Payment by Results the Most Effcient Way to Address the Challenges Faced by the Criminal Justice Sector?’ Probation Journal 59 (4) 355–373 Fox C, Harrison J, Marsh C and Smith A (2018) ‘Piloting Different Approaches to Personalised Offender Management in the English Criminal Justice System’ International Review of Sociology 28 (1) 35–61 Hayes LJB and Moore S (2017) ‘Care in a Time of Austerity: The Electronic Monitoring of Homecare Workers’ Time’ Gender, Work and Organization 24 (4) 329–344 HMIP (2016) Quality and Impact Inspection: The Effectiveness of Probation Work in Derbyshire [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/ sites/5/2016/09/Derbyshire-QI.pdf, accessed 16/4/19] HMIP (2017) Quality and Impact Inspection: The Effectiveness of Probation work in Staffordshire and Stoke [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/ uploads/sites/5/2017/01/Staffordshire-and-Stoke-QI-report2.pdf, accessed 16/4/19] HMIP (2018a) An Inspection of Essex Community Rehabilitation Company [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2018/10/ Essex-CRC-report_fnal.pdf, accessed 16/4/19] HMIP (2018b) An Inspection of Northumbria Community Rehabilitation Company [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/ sites/5/2018/11/Northumbria-CRC-inspection-report-1-1.pdf, accessed 16/4/19] HMIP (2018c) Probation Supply Chains: A Thematic Inspection [available online at www. justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2018/04/ Probation-Supply-Chains-Thematic-Report.pdf] HMIP (2019a) Report of the Chief Inspector of Probation [available online at www.justice inspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2019/03/HMI-ProbationChief-Inspectors-Report.pdf, accessed 30/3/19] HMIP (2019b) An Inspection of Cheshire and Greater Manchester Community Rehabilitation Company [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/ uploads/sites/5/2019/04/Cheshire-and-Greater-Manchester-CRC-inspection-report. pdf, accessed 16/4/19] HMIP (2019c) An Inspection of Dorset, Devon and Cornwall Community Rehabilitation Company [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/ uploads/sites/5/2019/02/Dorset-Devon-and-Cornwall-CRC-inspection-report.pdf, accessed 16/4/19] HMIP (2019d) An Inspection of Durham Tees Valley Community Rehabilitation Company [available online at www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/ sites/5/2019/03/Durham-Tees-Valley-CRC-report.pdf, accessed 16/4/19] ICF Consulting Services (2015) Payment by Results: Learning from the Literature [available online at www.nao.org.uk/wp-content/uploads/2015/06/Payment-by-Results-Learningfrom-the-Literature.pdf, accessed 28/4/19] Institute for Fiscal Studies (2017) Autumn 2017 Budget: Options for Easing the Squeeze [available online at www.ifs.org.uk/uploads/publications/comms/BN135.pdf, accessed 17/4/19] Justice Committee (2018) Transforming Rehabilitation:Ninth Report of Session 2017–19 [available online at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/482/482. pdf, accessed 3/5/19]

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Kuipers J (2017) Enable and Ensure: The Role of Inspection in Probation [available online at www.crimeandjustice.org.uk/sites/crimeandjustice.org.uk/files/Enable%20and%20 Ensure%2C%20November%202017.pdf, accessed 3/5/19] McDermott S (2016) ‘Probation Without Boundaries? “Agile Working” in the Community Rehabilitation Company “transformed” landscape’ Probation Journal 63 (2) 193–201 McNeill F, Farrall S, Lightowler C and Maruna S (2012) How and Why People Stop Offending: Discovering Desistance [available online at www.iriss.org.uk/resources/insights/how-whypeople-stop-offending-discovering-desistance, accessed 1/5/19] McNeill F and Robinson G (2013) ‘Liquid Legitimacy and Community Sanctions’ in A Crawford and A Hucklesby (eds) Legitimacy and Compliance in Criminal Justice Abingdon: Routledge Millings M, Taylor S, Burke L and Ragonese E (2019) ‘Through the Gate: The Implementation, Management and Delivery of Resettlement Service Provision for Short- Term Prisoners’ Probation Journal 66 (1) 77–95 Ministry of Justice (2013) Transforming Rehabilitation: A Strategy for Reform London: Ministry of Justice Ministry of Justice (2018) Strengthening Probation, Building Confdence [available online at https://consult.justice.gov.uk/hm-prisons-and-probation/strengthening-probationbuilding-confidence/supporting_documents/strengtheningprobationbuilding confdence.pdf, accessed 16/4/19] National Audit Offce (2019) Transforming Rehabilitation: Progress Review [available online at www.nao.org.uk/wp-content/uploads/2019/02/Transforming-Rehabilitation-Progressreview.pdf, accessed 17/4/19] PA (2014) A Parting Shot – The Questions Remain [available online at www.napo.org.uk/ sites/default/fles/A%20Parting%20Shot%20-%20The%20Questions%20Remain.pdf, accessed 1/5/19] Porporino F (2010) ‘Bringing Sense and Sensitivity to Corrections: From Programmes to “Fix” Offenders to Services to Support Desistance’ in J Brayford, F Cowe and J Deering (eds) What Else Works: Creative Work with Offenders Cullompton: Willan Rees J (2019) ‘Private Probation Firms in Wales and South West in Administration’ The Guardian 15 February [available online at www.bbc.co.uk/news/uk-wales-47240731, accessed 17/4/19] Robinson A (2013) ‘Transforming Rehabilitation: Transforming The Occupational Identity of Probation Workers?’ British Journal of Community Justice 11 (2–3) 91–101 Robinson G (2003) ‘Technicality and Indeterminacy in Probation Practice: A Case Study’ British Journal of Social Work 33 (5) 593–610 Robinson G, Burke L and Millings M (2016) ‘Criminal Justice Identities in Transition: The Case of Devolved Probation Services in England and Wales’ British Journal of Criminology, 56 (1) 161–178 Rubery J, Grimshaw D and Hebson G (2013) ‘Exploring the Limits to Local Authority Social Care Commissioning: Competing Pressures, Variable Practices, and Unresponsive Providers’ Public Administration 91 (2) 419–437 Shapland J, Bottoms A, Farrall S, McNeill F, Priede C and Robinson G (2012) The Quality of Probation Supervision: A Literature Review The University of Sheffeld Centre for Criminological Research Occasional Paper 3 Ugwudike P (2010) ‘Compliance with Community Penalties: The Importance of Interactional Dynamics’ in F McNeill, P Raynor and C Trotter (eds) Offender Supervision Cullompton: Willan

15 PRIVATIZATION OF CRIMINAL JUSTICE IN EASTERN EUROPE Simonas Nikartas

Introduction Privatization is usually defned as the contractual process that “shifts public functions, responsibilities, and capital assets, in whole or in part, from the public to the private sector.”1 It means that the public sector not merely acquires a product or service from a private company but also delegates the operational functions to that private company. According to K. Krajewski, in Central and Eastern Europe, there has been little progress in the privatization in criminal justice.2 In fact, after reviewing the practices of countries in this region, it can be said that there are very few private sector interventions in the criminal justice systems that correspond to the defnition stated earlier. The only two correctional institutions which are built and operate under the public-private sector partnership (PPP) are in Hungary. In many other countries in the region, like the Czech Republic, Lithuania, or Romania, there are plans for the privatization of prisons but they go no further. The private sector is mainly involved in providing specifc services that are not directly related to the supervision of prisoners, such as catering for prisoners’ laundry, prisoners’ employment in private companies, transporting, and health care. With probation and other noncustodial sanctions, there is even less involvement by proft-making companies. The area where the private (proft-making) sector involvement is most visible is with the electronic monitoring of offenders (EM). However, although there are very few forms of privatization in criminal justice, it cannot be said that the private sector has no commercial interest in that area. As mentioned, privatization usually involves the transfer of specifc functions of the public sector to the private sector. However, private companies may be involved in infuencing criminal justice systems without transferring specifc punitive functions, such as the provision of services and products needed to enforce criminal

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justice sanctions. Perhaps the best example of private sector active involvement in criminal justice is with Electronic Monitoring, which in many countries is limited to the provision of technology and support services by private companies. Nevertheless, their participation in criminal justice could not be defned as being within the defnition of privatization where private companies produce and sell EM equipment that has a signifcant commercial interest on criminal justice systems.3 In this chapter I will use a broader notion of private sector involvement in criminal justice. In the scientifc literature, private sector involvement in criminal justice systems in Eastern Europe is rarely mentioned.4 This is due to the low prevalence of privatization in the region. However, even though de facto privatization is not widespread there is an increase in interest from private companies. It is possible therefore to talk about future prospects and the potential risks that privatization might cause. The need for such a discussion is reinforced by the fact that there are factors in the Eastern European (EE) countries that are favourable to the development of private companies in the criminal justice sector. In this chapter I will focus on factors in those countries that can stimulate or hinder private sector involvement. I will also focus on EM as the most popular form of private sector involvement in EE criminal justice systems. In this chapter I have limited the discussion to proft-driven private sector involvement and the involvement of the non-governmental non-proft sector. I have done so by placing them within a specifc historical, social, and cultural context. Eastern Europe, as defned, is more of a geopolitical than a geographical term. European countries are usually described as having a shared history of communist regimes. Various authors call this group of countries “Eastern and Central Europe” or “Eastern and Central Europe and the Balkans.”5 In terms of its geopolitical history, the term covers the former states of the Warsaw Pact,6 which include the former Soviet Union and the states that were in its sphere of infuence. Also, it includes certain groups of states which were former members of a communist federal union, such as the post-Soviet republics and the states of the former Yugoslavia. Geographically, it is possible to distinguish North-Eastern Europe, which includes the Baltic States and Poland as well as Central Europe, which traditionally is related to the Czech Republic, Slovakia, Hungary (and sometimes Poland), and SouthEastern Europe. Specifc groups of states can still be distinguished as the Balkan countries together with those in the Caucasus region. Here, however, I will use the more general term, “Eastern European” countries (EE).

Private sector involvement in criminal justice in light of the historical-geopolitical context of EE Although the EE is often referred to as a single group of countries, there are signifcant social, political, economic, and cultural differences between them. For example, the countries of North-Eastern Europe (the Baltic States and Poland) are very different culturally and historically compared to the countries of South-eastern Europe and the Balkans. Eastern European countries also differ in terms of their

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levels of democracy and integration into the European Union (EU), NATO, or other international structures created by Western democracies. This is especially true of the former Soviet Union republics. Whilst the Baltic States (Lithuania, Latvia, Estonia) have been members of the European Union and NATO for 15 years, other states like Belarus and Russia have moved in the opposite direction and have more authoritarian regimes. Other former Soviet states, like Armenia or Ukraine, are still deciding or taking their frst steps on the road to democracy and Western integration. However, all EE countries are united by one common characteristic – the 50-year history of communist regimes. They have a shared history with similar social, cultural, economic, and political characteristics. These characteristics distinguish them from Western Europe, especially within the context of the privatization of probation and criminal justice. I suggest the following are the main characteristics that affect the private sector’s involvement in criminal justice systems in EE countries: • • • • • •

Severe penal policy, reflected by high rates of imprisonment Influence of neoliberal political values to the policy of punishment The involvement of the state Developing democracies and volatility of political systems and governments High levels of corruption Lower economic resources

Severe penal policy and prison overcrowding as a potential factor of private sector involvement in criminal justice Most EE countries have much higher numbers of prisoners and persons under probation supervision compared with Western European countries.7 LappiSeppälä identifes fve factors which are relevant to high imprisonment rates and harsh policies: high levels of income inequality, weak social welfare systems, low levels of trust in government, low levels of government legitimacy in the eyes of citizens, and confictual politics and policy processes.8 According to K. Krajewski, the last three factors are particularly characteristic of EE countries and their criminal justice policies.9 The lack of political legitimacy, low level of trust in government, and confictual politics and policy processes can also be characterized as the heritage of communist regimes. During the communist regime, the relationship between the state and the citizens was based on coercion and subordination, which was ensured by the application of extensive controls and punishments. Krajewski argues that “the communist authorities lacked political legitimacy among the vast majority of the population and this was probably the reason why communist crime control policies were so punitive; they were not necessarily rational, penalogical tools, but socio-technical instruments.”10 This inherited lack of political legitimacy and the state’s willingness to control and punish is still characteristic of most EE countries.

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Whilst harsh punishments in the EE can be seen on the one hand as a heritage of communist regimes, on the other hand there has been an increasing infuence of neoliberal trends in the region. Neoliberalism is a political philosophy of AngloSaxon countries, characterized by severe punishments and comparatively large numbers of offenders in prison.11 In terms of political morality, neoliberal policy in the EE has become a justifcation for a more rigourous criminal justice policy, since it neutralizes, to a certain degree, the heritage of communism. A strict criminal justice policy is not out of step with democracy, it is also a feature of states with long democratic traditions. Policies based on a neoliberal ideology in the EE should be seen as favourable to the privatization of criminal justice. These are also prevalent in Anglo-Saxon countries which are themselves characterized by similar policies involving the privatization of criminal justice. In the context of privatization, a harsh criminal policy and a high number of convicted prisoners can be seen as a market that attracts the attention of private companies, which in turn offer their ways and means to deal with this problem. Another essential factor which was part of the heritage of the communist regime is the priority of the state. This has been an obstacle to the privatization of criminal justice. In the EE during the communist period the private sector was almost nonexistent, and if it did exist specifc features were strictly controlled. When the EE states gained their independence, mass privatization took place12 but only in those areas which, according to certain democratic principles, were not related to the function of the state. Criminal justice was one of those areas protected from private sector intervention. The execution of punishments, as an exclusive state function, was enshrined in the constitutions of most states. Thus, prosecution and enforcement, in particular those involving deprivation or restriction of personal liberty, was a state function that must not be passed on to the private sector. Another essential factor that potentially hinders criminal justice privatization is the volatility of political systems. This is linked to the lack of political legitimacy and confictual political processes mentioned earlier. In most EE countries, unlike many Western countries, there are no stable party systems.13 That leads to political diversity, which in turn results in a diversity of government policies and, consequently, in unpredictability of decisions and strategies. If one government adopts and implements a long-term strategy, it does not mean that newly elected parties and subsequent governments will follow it. For example, the modernization strategy of prisons and its implementation plan in Lithuania in 2009 was approved. The strategy set as its goal the construction and reconstruction of 10 prisons in cooperation with the private sector, to last until 2016.14 However, with the change of governments, which represented other political goals and values, this strategy has not been implemented. Such volatility of political decisions taken by governments is a factor that potentially discourages private investors, especially when it comes to long-term investment. The level of corruption and transparency in a country is an essential factor in terms of private and public sector cooperation, and the risks related to it. High levels of corruption, lack of transparency in procedures, control mechanisms or ineffectiveness,

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are essential factors that can harm any enforcement system. This is particularly so in EE countries, which are characterized by high levels of corruption.15 Another essential feature of EE countries, compared to Western European countries, is signifcantly lower state revenues,16 and consequently limited opportunities to invest in various public sectors. As stated in the World Bank Report on PublicPrivate Partnerships in Prison Construction and Management, experience (of PPP in prison construction) in lower-income countries is limited. There are indications of inappropriate specifcations and standards which do not match needs and can hinder the cost-effectiveness of privately-run prisons.17 As such in lower-income countries, private sector involvement leads to more risks than in higher-income countries. Lower fnancial capabilities limit the possibilities of obtaining a highquality product necessary for the effective implementation of specifc activities. Investment in the modernization of the criminal justice sector is also hampered by the unpopularity of certain forms of governance and corresponding negative evaluations by convicted prisoners.18 This is another reason why governments are particularly reluctant to allocate funds for the modernization of enforcement systems. As a consequence alternative sources of state funds are being sought. For example, in the construction of new prisons the aims have been to attract private sector funds (although, as mentioned earlier, these projects have not been implemented in many countries). Governments are therefore looking for external project-based funding opportunities. In Lithuania and Latvia, the acquisition of EM systems was funded by Norwegian Government Grants.19

“Sprouts” of prison privatization in EE Harsh punishment and the old infrastructure inherited from the communist period have left EE countries facing problems of overcrowding and poor prison conditions. These have been recognized many times by the European Court of Human Rights as violating basic human rights.20 As a consequence states began to look for other ways of solving these problems. Given their political proximity to AngloSaxon countries, it is not surprising that the inclusion of the private sector is one of the areas of interest that has been addressed. In particular, the involvement of the private sector was considered in the planning and modernization of the prison infrastructure in Lithuania, the Czech Republic, and Hungary. Private and Public Sector Cooperation (PPP) was presented as one of the solutions to the problem of prison overcrowding and inadequate imprisonment, with the argument that modernizing prisons would reduce public sector expenses. In practice, however, only Hungary has succeeded in implementing this model. By the year 2008 two prisons had been built within the framework of the PPP project, one in Tiszalök and another in Szombathely.21 In other countries, such as the Czech Republic, and Lithuania, which were planning to build detention facilities with the participation of private companies, these plans were abandoned or suspended.22 Slovakia in 2008 declared plans to build a new prison in Rimavská Sobota in central-southern Slovakia. The planned prison will increase the current capacity by 832 inmates and

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will cost approximately €58 million.23 In other countries such as Poland, Romania, and Slovenia, the idea of privatizing prisons seemed to get no further than in public debates, preliminary plans, or intentions declared by politicians or government institutions.24 Several factors can explain the failure to introduce private and semi-private prisons. First of all, there is the volatility of strategies and decisions made by governments, as well as the way privatization contradicts with the countries’ constitutional principles. These require the correction of offenders to be an exclusive function of the state. Secondly, pragmatic and economic factors were relevant. It was realized that the construction of individual private prison establishments would not solve the problem of overcrowding. In the Czech Republic, for example, it was planned to build a prison of 585 places, with the number of prisoners in that country being about 20,000. Thus it could have only limited impact towards solving the problem of prison overcrowding. Instead, the Czech government chose to modernize existing detention facilities.25 Even in Hungary, the only EE country which has succeeded in building prisons based on PPP, it was realized that private prisons did not solve the overcrowding problem. Even worse, they produced more overcrowding.26 However, some forms of private sector involvement have been introduced, providing specifc services such as catering, laundry, employment, and health services.

The rise of EM as the main form of private sector involvement in criminal justice systems of EE countries As plans to build private prisons seem to be unsuccessful, governments in the EE have started looking for cheaper measures to reduce the number of prisoners. In particular, they have looked at alternatives to imprisonment. EM is presented as a “rescue wheel” in EE societies, most of which face the problem of prison overcrowding. First of all, EM is perceived as much cheaper than a prison sentence. For example, whilst the construction of a private prison costs tens or hundreds of millions of euros, the costs of an EM system (usually for fve or six years) starts from about €1 million depending on the amount of equipment purchased and the technical specifcations involved.27 Secondly, considering public support for harsh penal policies EM is presented as a measure that “kills two birds with one stone.” In order to reduce the number of prisoners, while avoiding any politically unsafe “too soft” alternatives to imprisonment, politicians present EM as a measure which will reduce the number of prisoners and reduce overcrowding, yet at the same time provide a reasonably severe level of control. It is easier for politicians to convince the public that an offender is continuously monitored and that law enforcement will immediately react to any violations. Thirdly, EM contributes to the creation of a modern technology-oriented state image. This is particularly important in the Baltic States, which shape the image of smaller states, which are oriented towards the development of modern digital technologies. This is especially so in many public and private sectors involving the

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digitalization of public service provision, e-governance, and the digitalization of documentation.28 Technological modernization has the support of public opinion. Thus EM can be introduced due to its potentially high levels of popularity within the society. The rapid development of EM is evidence of the fact that it has attracted considerable interest in EE countries and amongst private companies that produce and sell EM systems. At the end of the frst decade of the 21st century, only a few EE countries had EM. Estonia introduced EM in 2007,29 In Poland EM was introduced in 2007 and began operating in 2009.30 Meanwhile, at the end of the second decade, a large number of countries had already introduced and started EM: Serbia in 2011, Lithuania in 2012, Albania in 2013, Latvia in 2015, Slovakia in 2016, Croatia and Czech Republic in 2017, and Bulgaria in 2018.31 It seems that EM is catching up, even in those countries where EM was not even planned until recently. For example, in his article published in 2014, Mike Nellis indicated that Slovakia and Romania were not planning to introduce EM.32 New data shows that Slovakia has already introduced EM in 2016, and in 2018 Romania announced plans to introduce it by 2024.33 Other countries which announced plans to introduce EM are Montenegro, Azerbaijan, and Ukraine.34 A feature of EM is the amount of technological development required to operate it. For example in many countries, EM technologies have been used with radio frequency. However, over the last fve years, more and more countries in EE are acquiring advanced EM systems with GPS function (Estonia, Lithuania, Poland, Czech Republic, Slovakia). Slovakia and the Czech Republic recently have acquired EM systems which report the use of alcohol consumption.35 It is also important to emphasize that EM systems always require technical support and updating. Usually, contracts for the acquisition of EM systems are for a period of fve or six years. The states then have to make decisions about updating existing EM systems or purchasing new EM devices. Moreover, again, this is an area of interest for private companies. The more countries that use EM the more income private companies gain that produce and trade in EM systems. Although EM is often presented as an effective and inexpensive solution to the problem of prison overcrowding, there is still a lot of criticism, both in terms of its effciency, cost-effectiveness, and “net widening.” It is important to emphasize that most of the research includes the use of EM in Western and particularly in AngloSaxon countries. I want now to look at the problems and dangers that are specifc to EM in EE countries.

EM quality issues EM as a form of punishment and restriction of personal liberty is therefore a sensitive area of human rights. Technologies that restrict human freedom require high quality and effcient implementation. As mentioned, a lack of funds has limited opportunities for many EE countries to acquire high-quality systems or larger service packages. This can determine the quality and use of EM. Low-quality

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technology complicates enforcement and the adequate supervision of offenders, where frequent technical disturbances occur such as when the system detects false signals. These technical quality issues both disturb offenders and complicate the work of probation offcers. Public disclosure of these problems in society can lead to distrust in the use of EM for offenders. For example, the Estonian government, as a result of certain system failures and defciencies,36 has abandoned its supplier and contracted a new one.37 Another factor which can lead to a reduction in the effcient execution of sentences in EE countries is the high level of corruption. This potentially produces fragility in the public sector, especially when there is a confict of public and private interests. Effective enforcement of punishment is a matter of public interest in practically all democratic societies. Private intervention can create certain risks to the smooth running of penalties including the way the probation service operates and to the rights of convicted persons. For example, in some cases it was diffcult for governments to determine the number of EM units to be purchased as it was diffcult to predict how often they will be used. Their use depends not on legal matters including case law (the number of court decisions to impose EM), but on available support systems. For example, in 2012 the Lithuanian government rented a certain number of devices and had to pay out a considerable amount regardless of how much use was made of them by the courts. Thus, in the frst years of use, it was more expensive to have an offender on EM than have an offender in prison. The government had to advise that greater use should be made of EM in order to lower its cost.38 A similar situation occurred in Albania: where in 2013 an EM system was acquired which could monitor 300 people. Due to an absence of case law plus a lack of infrastructure between 2013 and 2015, only 23 offenders were put on EM.39 In these cases, the interest of the private sector was more successful than that of the public sector. Another issue concerns delays in procedures to acquire EM systems. This is a particularly acute problem when there is national legislation which requires EM to be introduced as a mandatory measure for all forms of probation. For example, in the Baltic States, an earlier conditional release programme could only be applied using EM. And by making EM mandatory, public authorities were legally bound to use this technology. This means that state institutions cannot make use of individual probation institutes without having EM equipment. Competition between private companies, bureaucratic procedures, or cases where these procedures are delayed by the actions of others, may lead to situations where EM will neither be acquired or implemented (e.g., public procurement cancelled due to inadequate specifcations, public procurement rules, and procedures violations, etc.). This can lead to a violation of the rights of offenders especially when EM is used as an alternative to imprisonment. An example is in the case of Lithuania, where EM acquisition was slowed down due to the infuence of private companies. So, in 2015–2016, when EM systems were acquired, competing private companies fled complaints against public procurement control authorities and the courts, thus delaying the acquisition

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process. Although it was later proved that the complaints were not substantiated, the acquisition process nevertheless took a long time. Therefore, at the end of the contract with an earlier supplier of EM equipment, there was a risk that the state might not have EM, although it was legally required. In this case, the greatest threat was that the rights of the convicted offenders would be violated, as the courts would not be able to provide intensive supervision as a form of conditional release. In that situation, the contract was extended with the previous supplier, but again it required additional funds. Similarly in Latvia, the Latvian Parliament postponed the introduction of laws providing for the use of EM, as the procedures for EM were delayed.

Costs of EM The main declared goal for EM is to reduce the number of prisoners, the argument being that EM is much cheaper than imprisonment. Studies show that the daily costs of EM are less than daily costs of imprisonment.40 Yet, EM is still a relatively expensive tool, especially when compared to alternatives to imprisonment. For example, in Poland, the monthly costs of EM were approximately half the average cost of imprisonment.41 In Lithuania the price of an EM monitoring system was about €1 million. This was a signifcant amount considering the annual budget of the Lithuanian probation system is €4 million. As F. Dünkel points out, calculating the costs of EM is only valid if (1) EM replaces imprisonment, or (2) becomes a cheaper alternative to early release measures, such as probation or parole (without EM) where neither are available or appropriate.42 In some countries, it is said that EM is an alternative to imprisonment and will therefore reduce the number of prisoners. Looking at the legal regulations of the EE countries, it seems that this is not so. Few EE states establish EM as a direct alternative to imprisonment. For example, in Estonia and Poland EM can be used as a substitute for a sentence of imprisonment of up to one year.43 In Latvia, Estonia, and Lithuania, EM can be used as the basis for the conditional release.44 However, in Estonia, EM can be used for offenders where probation conditions are violated, and for controlling inmates on short-term visits outside the prison. It can also be used as a tool for victim protection and surveillance of offenders under probation supervision who have been convicted of a new offence.45 In Lithuania, EM is applied as a curfew control measure in cases of probation (custodial sentence suspension or conditional release) or a penalty involving restriction of liberty.46 In the Polish Criminal Code EM was introduced in 2007 as an alternative to custodial sentences of up to one year. However, in 2015, with the introduction of the new Criminal Code, EM can now be applied as a form of restriction on liberty such as when the court imposes a curfew.47 In other states, EM is not an alternative to imprisonment. For example, in the Czech Republic, Slovakia, Bulgaria, and Albania,48 EM is used as a tool of control of probation (suspension of punishment and conditional release from prison) or as a measure for house arrest and as a curfew. In Slovakia, Lithuania, and Poland, EM is also applied in cases of a restriction of liberty.49

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Thus, in most countries, EM is used as an instrument for controlling probation rather than an alternative to imprisonment. This suggests that EM complements existing non-custodial offenders supervision measures and probably contributes to the net widening of criminal justice. As F. Dünkel emphasizes consideration is rarely given as to whether other options could be used.50 The essential question is whether EM can be replaced by less expensive and more lenient measures, especially if applied to low-risk offenders. It seems EM is most appropriate for those individuals who pose a risk of committing crime or are a danger to others. When there is no such risk, the question is whether it is appropriate to use EM. In some countries EM is applied irrespective of whether the individual poses the risk of repeated crime or danger to other persons. For example, in Lithuania intensive supervision with EM is used as a conditional release. Offenders are given the opportunity of being released from prison nine months earlier when EM is not applied.51 Intensive supervision, as defned by the Probation Law of the Republic of Lithuania, is to control the location of the offender on probation.52 The purpose of intensive supervision is usually to monitor offenders classed as high risk.53 In Lithuania, intensive supervision can be applied to all inmates who meet the formal criteria for conditional release. There are, therefore, many cases of intensive supervision applied for persons with low repeated crime risk or who, according to their personal characteristics, are not defned as dangerous to other persons. For example, intensive supervision can be applied to persons sentenced to crimes such as counterfeiting, cyber-fraud, fnancial crimes, and corruption. In these cases EM is not an appropriate measure. There were even cases where intensive care was imposed on people who have health issues leading to problems of mobility. Thus, alternative measures that might be more appropriate for persons with low-crime risk or whose crimes or personal characteristics are not related to the need to apply EM are not considered.

Conclusions The privatization of criminal justice is not common in the EE region. The processes of privatization are particularly hampered by legal, political, and economic factors such as restrictions on the delegation of public functions to the private sector, the volatility of political programmes and strategies, and the lack of funds. However, the problem of overcrowding in prisons, the high number of offenders, and the widespread use of penalties, attract the attention of private companies. Although attempts to build private prisons have collapsed in many countries, the private sector has found its niche in the use of EM, the deployment and application of which is rapidly spreading throughout the region. Although EM is often presented as an economical and effective alternative to imprisonment, this is not always so. States are confronted with the quality of EM and the adverse effects on EM procurement procedures, all of which can negatively affect the smooth execution of sentences and violate the rights of offenders. It also seems that economic savings and a reduction in the number of prisoners are not always attainable, so that in most states EM is not a real alternative to imprisonment.

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Notes 1 Cavadino M and Dignan J (2007) The Penal System: An Introduction (4th ed.). London: Sage Publications, p. 251. 2 Krajewski K (2018) Privatisation of Punishment in Poland. In Beans T and Vander Beken T (eds) Privatising Punishment in Europe? Routledge, p. 45. 3 See Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1; Nellis M (2014) Understanding the Electronic Monitoring of Offenders in Europe: Expansion, Regulation and Prospects. Crime, Law and Social Change. Vol 62 No 4. 4 See Krajewski K (2018) Privatisation of Punishment in Poland. In Beans T and Vander Beken T (eds) Privatising Punishment in Europe? Routledge; Nellis M (2014) Understanding the Electronic Monitoring of Offenders in Europe: Expansion, Regulation and Prospects. Crime, Law and Social Change. Vol 62 No 4; Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1. 5 For example, these definitions are used in following research publications: Goodey J (2004) Sex Trafficking in Women from Central and East European Countries:Promoting a ‘VictimCentred’ and ‘Woman-Centred’ Approach to Criminal Justice Intervention. Feminist Review. Vol 76 No 1 pp. 26–45; Caparini M (2014) Comparing the Democratization of Intelligence Governance in East Central Europe and the Balkans. Intelligence and National Security. Vol 29 No 4 pp. 498–522; Gruszczyńska B (2004) Crime in Central and Eastern European Countries in the Enlarged Europe. European Journal on Criminal Policy and Research. Vol 10 No 2 pp. 123–136. Copeland P (2014) Central and Eastern Europe: Negotiating Influence in an Enlarged European Union. Europe-Asia Studies. Vol 66 No 3 pp. 467–487. 6 See Rubin F (1982) The Theory and Concept of National Security in the Warsaw Pact Countries. International Affairs. Vol 58 No 4 pp. 648–657; Kozak M, Bornmann L and Leydesdorff L (2013) How Have the Eastern European Countries of the Former Warsaw Pact Developed since 1990? A Bibliometric Study. Scientometrics. Vol 102. 7 See Harrendorf S (2017) Attrition in and Performance of Criminal Justice Systems in Europe: A Comparative Approach. European Journal on Criminal Policy and Research. Vol 24 No 1 pp. 7–36; Krajewski K (2010) Why Central and Eastern European Countries Have High Imprisonment Rates. Criminology in Europe (Newsletter of the European Society of Criminology). Vol 9 No 3 pp. 7–10. Aebi MF, Delgrande N and Marguet Y (2015) Have Community Sanctions and Measures Widened the Net of the European Criminal Justice Systems? Punishment and Society. Vol 17 No 5 pp. 575–597. 8 Lappi-Seppälä T (2008) Trust, Welfare, and Political Culture: Explaining Differences in National Penal Policies. Crime and Justice. Vol 37 No 1. 9 Krajewski K (2010). Why Central and Eastern European Countries Have High Imprisonment Rates. Criminology in Europe (Newsletter of the European Society of Criminology). Vol 9 No 3 pp. 7. 10 Krajewski K (2010). Why Central and Eastern European Countries Have High Imprisonment Rates. Criminology in Europe (Newsletter of the European Society of Criminology). Vol 9 No 3 pp. 7. 11 See Norkus Z (2008) Which Democracy? Which Capitalism? Vilnius University Press. 12 Lieberman I, Ewing A, Mejstrik M, Mukherjee J and Fidler P (eds) (1995) Mass Privatisation in Central and Eastern Europe and the Former Soviet Union: A Comparative Analysis. Studies of economies in transformation. Washington, DC: The World Bank. 13 See Norkus Z (2008) Which Democracy? Which Capitalism? Vilnius University Press. 14 See the Resolution of the Government of the Republic of Lithuania “On Approval of the Strategy for Modernization of Imprisonment and Its Implementation Plan for 2009– 2017”. https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.354370?jfwid=-je7i1syyn 15 For example, Transparency International survey carried out in 2018 revealed that the corruption perception index in Eastern European countries (except Estonia) is much lower than in most Western European countries. Thus, the state and its criminal systems are potentially more vulnerable in this area. See www.transparency.org/cpi2018#results

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16 See European Commission Statistics on EU members expenditure and revenue: http:// ec.europa.eu/budget/graphs/revenue_expediture.html 17 See Allen R and English P (2013) Public-Private Partnerships in Prison Construction and Management. The World Bank. 18 For example, the Eurobarometer Survey of 2015 shows that in all Member States, more than six out of 10 respondents agree that “criminals should be punished more severely.” However, the citizens of EE countries who are members of EU support the harsh punishment more when compared with Western European countries (in particular North-Western Europe): Czech Republic (94%), Croatia (93%), Slovakia (91%), Romania (89%), Hungary (87%), Poland (85%), Lithuania (84%), Latvia (82%), Sweden (61%), Denmark (66%), the Netherlands (66%), Germany (77%), Belgium (78%), France (78%). See Standard Eurobarometer 83 Spring 2015 European Citizenship Report: http://ec.europa. eu/commfrontoffice/publicopinion/archives/eb/eb83/eb83_citizen_en.pdf 19 See more detailed information here: www.norwaygrants.lt/en/programmes/projects/ program/28 www.pr ison-insider.com/en/news/latvia-electronic-monitoringimplemented-in-latvia-with-norway-grants 20 About human rights violations related to detention conditions and treatment of prisoners see the European Human Rights Court Factsheet – Detention Conditions and Treatment of Prisoners (2019). www.echr.coe.int/documents/fs_detention_conditions_eng.pdf 21 At first, it was provided, that the private sector would have been responsible only for the building process of these prisons and any other tasks would have been the responsibility of the public sector. But finally, beyond the building, most of the tasks (like catering, transport, etc.) were carried out by the private sector (see: Conditions in Hungarian Prisons: Challenges in Addressing Overcrowding and other Inhuman Circumstances. University of Oslo. www.duo.uio.no/bitstream/handle/10852/57339/HUMR5200_8003.pdf?sequence=1) 22 See Resolution of the Government of the Republic of Lithuania. On Approval of the Strategy for Modernization of Imprisonment and Its Implementation Plan for 2009–2017. https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.354370?jfwid=-je7i1syyn; Projekt soukromé věznice za miliardu stagnuje (07–01–2011) Article in online magazine www. denic.cz: www.denik.cz/ekonomika/projekt-soukrome-veznice-za-mil20110107.html 23 See “New prison planned to help ease the shortfall of prison places in Slovakia” Article in the online magazine: https://spectator.sme.sk/c/20735840/new-prison-planned-tohelp-ease-the-shortfall-of-prison-places-in-slovakia.html 24 See more information about the countries here: Slovenia: www.zurnal24.si/slovenija/ za-zapahe-v-zasebni-zapor-156434; Poland: Krajewski K (2018) Privatisation of Punishment in Poland. In Beans T and Vander Beken T (eds) Privatising Punishment in Europe? Routledge; Romania: www.romania-insider.com/new-prisons-to-accomodate-over crowded-inmates-would-cost-romania-more-than-eur-1-billion; www.digi24.ro/stiri/ economie/cum-a-esuat-proiectul-primei-puscarii-private-din-romania-sunt-penitenciareleprivate-solutia-538489 25 See Projekt soukromé věznice za miliardu stagnuje (07–01–2011) Article in online magazine www.denic.cz: www.denik.cz/ekonomika/projekt-soukrome-veznice-za-mil 20110107.html 26 See Conditions in Hungarian Prisons: Challenges in Addressing Overcrowding and other Inhuman Circumstances. University of Oslo. www.duo.uio.no/bitstream/handle/10852/57339/ HUMR5200_8003.pdf?sequence=1 27 For example, the price of the 15-year contract of construction and running of Tiszalök Prison was €97.5 million. The planned prison in Slovakia will cost approximately €58 million: https://spectator.sme.sk/c/20735840/new-prison-planned-to-help-ease-theshortfall-of-prison-places-in-slovakia.html The Czech Republic government signed a €3.3 million six-year contract with Supercom: www.prnewswire.com/news-releases/supercom-wins-37-million-nationalelectronic-monitoring-contract-in-the-czech-republic-616608144.html In Lithuania total final cost of the Norway Grants project acquiring 125 EM units for five years was €947,464. https://eeagrants.org/project-portal/project/LT14-0001. In

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29 30 31

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2018, the Estonian government signed a €1.2 million 4.5-year contract with Supercom to acquire 200 EM units: www.prnewswire.com/news-releases/supercom-launchesnational-electronic-monitoring-project-in-estonia-300786693.html For example, according to the data of the European Commission, Estonia and Lithuania are leaders in country digitalization among EE states members of the EU. See www. balticsea-region-strategy.eu/news-room/news/591002-baltic-sea-region-countriesleading-in-digitalisation See Ginter J and Kuuse R (2012) Estonia. In Kalmthout A and Durnescu I (eds) Probation in Europe. CEP. See Jaskóła A and Szewczyk P (2017) Evolution of the Electronic Monitoring in Poland. World Scientific News. Vol 85 pp. 4–12. See more detailed information about the introduction of EM in the countries: Serbia:Zeleskov Djoric J,Batricevic A and Kuzmanovic M (2014) Serbia. In Kalmthout A and Durnescu I (eds) Probation in Europe. CEP; Lithuania: Sakalauskas G (2017) Elektronische Überwachung in weiteren europäischen Ländern: Litauen. In Dünkel F, Thiele C and Treig J (ed) Elektronische Überwachung von Straffälligen im europäischen Vergleich – Bestandsaufnahme und Perspektiven Mönchengladbach. Forum Verlag Godesberg, p. 389–400; Albania: Kambellari E, Jorganxhi A, Riley-Smith G and Doçi B (2015) Policy Paper on Reducing Overcrowding in Prisons and Prie-rial Detention Facilities in Albania. OSCE; Latvia: State Probation Service information on Electronic Surveillance Implementation www.vpd.gov.lv/informcijaparvalstsprobcijasdienestaprojektanrlv 081alternatvubrvbasatemanaisekmanaieskaitotiespjamo1?lang=EN; Slovakia: Mihok P (2018) Electronic Monitoring of Offenders and Accused Persons in Slovakia in the International and European Context. Law & Political Science Conference, Prague; Croatia: Špero J (2017) Elektronički nadzo pilot-projekt u Republici Hrvatskoj. Hrvatski ljetopis za kaznene znanosti i praksu. Vol 24 No 2; Czech Republic: V České republice je teď 82 lidí s elektronickými náramky, z toho 18 na jižní Moravě (2018): www.ceska-justice.cz/2018/11/ceske-republice-ted-82-lidi-elektronickyminaramky-toho-18-jizni-morave/; Bulgaria: Electronic Bracelets for Monitoring Criminals will Finally be Introduced from October (2018) www.novinite.com/ articles/187765/Electronic+Bracelets+for+Monitoring+Criminals+will+Finally+ be+Introduced+from+October;

32 Nellis M (2014) Understanding the Electronic Monitoring of Offenders in Europe: Expansion, Regulation and Prospects. Crime, Law and Social Change. Vol 62 No 4, p. 499. 33 See “Solutions to Prison Overcrowding in Romania: Electronic Monitoring, More Places in Prisons” Online magazine article (18 January 2018). www.romania-insider.com/ solutions-prison-overcrowding-romania 34 See more detailed information about the countries: Montenegro: Strategy for the execution of criminal sanctions 2017–2021. Montenegro Ministry of Justice, 2016; Azerbaijan: https://en.azvision.az/news/68359/azerbaijanipresident-initiated-fundamental-changes-to-the-criminal-justice-system.html; Ukraine: http://en.unba.org.ua/activity/news/4189-unba-intents-to-activate-thecooperation-with-the-probation-project-norlau-aiming-at-development-of-electronicmonitoring-naau.html 35 See Slovakia: Mihok P (2018) Electronic Monitoring of Offenders and Accused Persons in Slovakia in the International and European Context. Law & Political Science Conference, Prague; Czech Republic: www.ceska-justice.cz/2018/11/ceske-republice-ted-82-lidielektronickymi-naramky-toho-18-jizni-morave/ 36 See Miljan K and Kama P (2016) Electronic Monitoring in Estonia Baltic Probation Seminar (4 August 2016), Panevėžys. 37 See “SuperCom Launches National Electronic Monitoring Project in Estonia” Newsletter (30 January 2019). www.prnewswire.com/news-releases/supercom-launches-nationalelectronic-monitoring-project-in-estonia-300786693.html

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38 Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1 p. 60. 39 Kambellari E, Jorganxhi A, Riley-Smith G and Doçi B (2015) Policy Paper on Reducing Overcrowding in Prisons and Prie-rial Detention Facilities in Albania. OSCE. 40 Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1 p. 69. 41 Krajewski K (2018) Privatisation of Punishment in Poland. In Beans T and Vander Beken T (eds) Privatising Punishment in Europe? Routledge. 42 Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1 p. 69. 43 See Criminal Code of the Republic of Estonia (2001, amended 2017) (English version). www.legislationline.org/documents/section/criminal-codes/country/33/Estonia/show; Jaskóła A and Szewczyk P (2017) Evolution of the Electronic Monitoring in Poland. World Scientific News. Vol 85. 44 See Criminal Law of the Republic of Latvia (amended in 2015) (English version). www.vvc.gov.lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc; The Criminal Code of the Republic of Lithuania (2003, amended in 2019). www.etar.lt/portal/lt/legalAct/TAR.2B866DFF7D43/asr; The Penalties Execution Law of the Republic of Lithuania (2002, amended 2019). https://e-seimas.lrs.lt/portal/legalAct/ lt/TAD/TAIS.171368/asr; Criminal Code of the Republic of Estonia (2001, amended 2017) (English version). www.legislationline.org/documents/section/criminal-codes/ country/33/Estonia/show; 45 See Criminal Code of the Republic of Estonia (2001, amended 2017) (English version). www.legislationline.org/documents/section/criminal-codes/country/33/Estonia/show 46 See Criminal Code of the Republic of Lithuania (2003, amended in 2019). www.e-tar. lt/portal/lt/legalAct/TAR.2B866DFF7D43/asr 47 See Jaskóła A and Szewczyk P (2017) Evolution of the Electronic Monitoring in Poland. World Scientific News. Vol 85. 48 See more detailed information about the countries: Albania: Criminal Code of the Republic of Albania (1995, amended in 2014) (English version). http://rai-see.org/wpcontent/uploads/2015/08/Criminal-Code-11-06-2015-EN.pdf; Czech Republic: www. pmscr.cz/images/clanky/letak_TDV_EN.pdf; Slovakia: Mihok P (2018) Electronic Monitoring of Offenders and Accused Persons in Slovakia in the International and European Context. Law & Political Science Conference, Prague; Bulgaria: www.euprobationproject.eu/ national_detail.php?c=BG 49 See Mihok P (2018) Electronic Monitoring of Offenders and Accused Persons in Slovakia in the International and European Context. Law & Political Science Conference, Prague; The Criminal Code of the Republic of Lithuania (2003, amended in 2019). www.e-tar.lt/ portal/lt/legalAct/TAR.2B866DFF7D43/asr; Jaskóła A and Szewczyk P (2017) Evolution of the Electronic Monitoring in Poland. World Scientific News. Vol 85. 50 Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1 p. 69. 51 See Penalties Execution Law of the Republic of Lithuania (2002, amended 2019). https://e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.171368/asr 52 See Probation Law of the Republic of Lithuania (2012, amended 2019). https://e-seimas. lrs.lt/portal/legalAct/lt/TAD/TAIS.415894/asr 53 See Hyatt JM and Barnes GC (2014) An Experimental Evaluation of the Impact of Intensive Supervision on the Recidivism of High-risk Probationers. Crime and Delinquency. Vol 63 No 1 pp. 1–36.

Bibliography Aebi MF, Delgrande N and Marguet Y (2015) Have Community Sanctions and Measures Widened the Net of the European Criminal Justice Systems? Punishment and Society. Vol 17 No 5 pp. 575–597.

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Allen R and English P (2013) Public-Private Partnerships in Prison Construction and Management. The World Bank. Caparini M (2014) Comparing the Democratization of Intelligence Governance in East Central Europe and the Balkans. Intelligence and National Security. Vol 29 No 4 pp. 498–522. Cavadino M and Dignan J (2007). The Penal System: An Introduction (4th ed.). London: Sage Publications. Conditions in Hungarian Prisons: Challenges in Addressing Overcrowding and other Inhuman Circumstances. University of Oslo. www.duo.uio.no/bitstream/handle/10852/57339/ HUMR5200_8003.pdf?sequence=1 Copeland P (2014) Central and Eastern Europe: Negotiating Infuence in an Enlarged European Union. Europe-Asia Studies. Vol 66 No 3 pp. 467–487. Criminal Code of the Republic of Albania (1995, amended in 2014) (English version). http://rai-see.org/wp-content/uploads/2015/08/Criminal-Code-11-06-2015-EN.pdf Criminal Code of the Republic of Estonia (2001, amended 2017) (English version). www. legislationline.org/documents/section/criminal-codes/country/33/Estonia/show Criminal Code of the Republic of Lithuania (2003, amended in 2019). www.e-tar.lt/portal/ lt/legalAct/TAR.2B866DFF7D43/asr Criminal Law of the Republic of Latvia (amended in 2015) (English version). www.vvc.gov. lv/export/sites/default/docs/LRTA/Likumi/The_Criminal_Law.doc Dünkel F (2018) Electronic Monitoring in Europe – A Panacea for Reforming Criminal Sanctions Systems? A Critical Review. Criminological Studies. Vol 6 No 1 pp. 58–77. Ginter J and Kuuse R (2012) Estonia. In Kalmthout A and Durnescu I (ed) Probation in Europe. CEP. Gruszczyńska B (2004) Crime in Central and Eastern European Countries in the Enlarged Europe. European Journal on Criminal Policy and Research. Vol 10 pp. 123–136. Harrendorf S (2017) Attrition in and Performance of Criminal Justice Systems in Europe: A Comparative Approach. European Journal on Criminal Policy and Research. Vol 24 No 1 pp. 7–36. Hyatt JM and Barnes GC (2014) An Experimental Evaluation of the Impact of Intensive Supervision on the Recidivism of High-risk Probationers. Crime and Delinquency. Vol 63 No 1 pp. 1–36. Jaskóła A and Szewczyk P (2017) Evolution of the Electronic Monitoring in Poland. World Scientifc News. Vol 85 pp. 4–12. Kambellari E, Jorganxhi A, Riley-Smith G and Doçi B (2015) Policy Paper on Reducing Overcrowding in Prisons and Prie-rial Detention Facilities in Albania. OSCE. Kozak M, Bornmann L and Leydesdorff L (2013) How Have the Eastern European Countries of the Former Warsaw Pact Developed since 1990? A Bibliometric Study. Scientometrics. Vol 102. Krajewski K (2010). Why Central and Eastern European Countries Have High Imprisonment Rates. Criminology in Europe (Newsletter of the European Society of Criminology). Vol 9 No 3 pp. 7–10. Krajewski K (2018) Privatisation of Punishment in Poland. In Beans T and Vander Beken T (eds) Privatising Punishment in Europe? Routledge. Lappi-Seppälä T (2008) Trust, Welfare, and Political Culture: Explaining Differences in National Penal Policies. Crime and Justice. Vol 37 No 1. Lieberman I, Ewing A, Mejstrik M, Mukherjee J and Fidler P (eds) (1995) Mass Privatisation in Central and Eastern Europe and the Former Soviet Union: A Comparative Analysis. Studies of economies in transformation. Washington, DC: The World Bank. Mihok P (2018) Electronic Monitoring of Offenders and Accused Persons in Slovakia in the International and European Context. 2nd Law & Political Science Conference, Prague.

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Miljan K and Kama P (2016) Electronic Monitoring in Estonia Baltic Probation Seminar (4 August 2016), Panevėžys. Nellis M (2014) Understanding the Electronic Monitoring of Offenders in Europe: Expansion, Regulation and Prospects. Crime, Law and Social Change. Vol 62 No 4 pp 489–510. Norkus Z (2008) Which Democracy? Which Capitalism? Vilnius University Press. Penalties Execution Law of the Republic of Lithuania (2002, amended 2019). https:// e-seimas.lrs.lt/portal/legalAct/lt/TAD/TAIS.171368/asr Probation Law of the Republic of Lithuania (2012, amended 2019). https://e-seimas.lrs.lt/ portal/legalAct/lt/TAD/TAIS.415894/asr Resolution of the Government of the Republic of Lithuania. On Approval of the Strategy for Modernization of Imprisonment and its Implementation Plan for 2009–2017. https://e-seimas. lrs.lt/portal/legalAct/lt/TAD/TAIS.354370?jfwid=-je7i1syyn Rubin F. (1982) The Theory and Concept of National Security in the Warsaw Pact Countries. International Affairs. Vol 58 No 4 pp. 648–657. Sakalauskas G (2017) Elektronische Überwachung in weiteren europäischen Ländern: Litauen. In Dünkel F, Thiele C and Treig J (eds) Elektronische Überwachung von Straffälligen im europäischen Vergleich – Bestandsaufnahme und Perspektiven Mönchengladbach. Forum Verlag Godesberg, pp. 389–400. Špero J (2017) Elektronički nadzor pilot-projekt u Republici Hrvatskoj. Hrvatski ljetopis za kaznene znanosti i praksu. Vol 24 No 2, pp. 671–692. Strategy for the Execution of Criminal Sanctions 2017–2021 Montenegro Ministry of Justice, 2016. Zeleskov Djoric J, Batricevic A and Kuzmanovic M (2014) Serbia. In Kalmthout A and Durnescu I (eds) Probation in Europe. CEP.

16 PRIVATISATION OF CRIMINAL JUSTICE IN AUSTRALIA Marietta Martinovic, Marg Liddell and David Daley

Introduction Growth in prisoner numbers in Australia and associated pressure to provide infrastructure and accommodation within budget constraints have meant state governments in Australia have continued to search for alternative ways to deliver prison services (Andrew, Baker and Roberts, 2016). Hence, Australia has embraced prison privatisation at a faster rate than any other country in the world. In fact, a comparison of all countries around the world has found that Australia has the highest rate of private-prison incarceration per capita (Jesuit Social Services, 2017), with 18.8% of its prisoners in private prisons (The Productivity Commission, 2019). Similarly, in the United Kingdom (UK) 17.2% of prisoners are in private prisons (Ministry of Justice, 2018). Interestingly even though the United States of America (USA) was the main driver towards private prison use, only 8% of its prisoners are in privately owned prisons (Andrew et al., 2016; Harding, Rynne and Thomsen, 2019). In Australia, governments purchase prison management and program services from the private provider but retain the responsibility for the correctional system. Regular monitoring occurs with expectations that the private provider applies policies, rules and procedures outlined in the government contract (Harding, 1992; Harding, 1999; O’Toole, 2005). Further, the government via the court system within the prevailing laws retains the allocation of punishment, and the private prison management administers the punishment on a day-to-day basis (Harding, 1999). Whilst privatisation in the criminal justice system largely applies to prisons, there are other forms of privatisation that have been or are being considered. For example, many prison products and services such as health, education and rehabilitative programs are provided by the not-for-proft sector (Harding, 1992; O’Toole, 2005). This sector is regulated with key performance indicators documented in service

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agreements. Limited examples of privatisation are also observed in community corrections in Australia. For the purposes of this chapter privatisation of criminal justice in Australia will be discussed and analysed primarily through an examination of private prisons. The chapter commences with a brief perusal of the historical origins of prison privatisation, the rationale behind prison privatisation, the current state of prison privatisation and the state of Victoria’s private prison experience. We then consider whether prison privatisation has resulted in reduced costs and improved outcomes. We will conclude the chapter by considering past and current debates related to the wider privatisation movement. In summary, we consider the jury to be out about the success of privatisation in the criminal justice sector in Australia.

Historical antecedents Private citizen involvement in the supervision of Australia’s prisoners can be traced back to the earliest decades of the convict colony in New South Wales (NSW). Orders in Council were issued in London in December 1786 for the establishment of a penal colony in NSW, a decision deemed necessary after the United States’ independence closed off the option of further convict transportation to that country (Atkinson, 1997). In 1788, the frst group of convicts was transported to Australia in six of the 11 ships contracted by the British government from private marine companies (Hughes, 1987; Grabosky, 1977; Macintyre, 1985). Estimates vary but the frst feet may have contained as many as 1,400 people. There were at least 800 convicts, 200 of them were women (Grabosky, 1977; Macintyre, 1985). During the next 90 years, while there is variation in the numbers, between 160,000 (Garton, 1990) to 187,000 (Macintyre, 1985) people were transported to Australia until the practice ended in most of the country by mid-century and in Western Australia in 1868. There were no prisons to house the frst convicts and the fedgling NSW colony could not afford the luxury of keeping them incarcerated and fed when there was a critical shortage of essential skills. In addition, many of the convicts had been transported for what would now be considered as minor crimes (Payne, 1961). As the number of free settlers grew convicts were assigned to them wherever possible. These free settlers were then responsible to feed and discipline them. Thus, there was a rudimentary system of private participation in the management of prisoners. O’Toole (2005), notes that just as in the USA, where the transportation of convicts had been pioneered by entrepreneurs, Australia’s free settlers were able to eventually exploit convict labour for individual or company proft. The 1820s saw increased regulation of convicts (Macintyre, 1985). During the frst fve years, the new colony was frequently close to starvation. The production of food locally was hampered as few convicts had any knowledge of agriculture, much less knowledge of how to grow food in conditions with different seasons and climate to England (Atkinson, 1997). Convicts were also a dubious source of labour as many were extremely weak due to long voyages, were sometimes unmotivated workers, and conditions in the new colony were harsh. What faced

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the colony’s leaders were inevitably residual responses to social needs and issues. The colonists brought with them highly restricted rights and traditions based on the English Poor Law. The English traditions were of limited value given that the Poor Law was based on charitable relief within one’s parish of origin (Peyser, 1939; Garton, 1990). These traditions however were problematic and residual responses were inevitable. There were no parishes and very few God-fearing people. For some decades many citizens were reliant on reluctantly provided provisions from the government store. Therefore, the colony started with no infrastructure to build social policy (Garton, 1990). We can see some of these early responses to need still refected in modern provisions. The beneft of convict labour to free settlers and the discretion to discipline them as seen ft is exemplifed by their strenuous opposition to the introduction in the 1830s of legislation to limit more stringently the punishment of misconduct (King, 1966). Opponents portrayed it as an unreasonable incursion which would encourage unruly behaviour and threaten the safety of the general populace. However, the next century and a half witnessed the steady expansion by the state of its powers to impose and administer criminal sanctions, and the declining role of private infuence. Due to the increase in population and the maturity of the colonies from the 1820s to the 1850s, each settlement undertook more responsibility for law, order and justice (Macintyre, 1985). Large prisons were subsequently built in capital cities, with satellite prisons in some regional areas (Harding et al., 2019; O’Toole, 2005). Our purpose in detailing older events is not to present a complete history. Rather it is to demonstrate the reluctant and frequently parsimonious policy responses we inherited and in particular to show that citizen or private interests have been involved in the criminal justice system since the early days of white settlement. The abuses suffered by the indigenous population are also related issues but beyond us to pursue here. However, the gaps between the early history and recent decades continued to feature private citizen involvement. In a related feld the involvement of the ‘child savers’ in child protection in the late 19th century was one example. So was the involvement of voluntary probation offcers in Victoria until the system was gradually professionalised from the 1950s on. The history of private citizens in such felds is a lengthy one. However, we will concentrate our attention on more recent developments. Australia’s desire to embrace privatisation in the 1980s–1990s was in part a consequence of Australia’s correctional administrators needing to update the aging infrastructure of existing prisons (referred to earlier) which did not comply with modern and expensive correctional standards. This coupled with a sharp rise in prison numbers and high rate of imprisonment had similar consequences to the boom in prison building in the mid-1800s (O’Toole, 2005). Australia became the frst country outside of the United States to embrace privatisation of prisons (Brown, 1992). In October 1988, the state of Queensland (QLD) made the decision to operate a new 244-bed prison under a management contract with a private company. This marked a national turning point. Borallon, near Brisbane in QLD,

234 Marietta Martinovic et al.

became the frst prison to be managed by the private sector in 1990. This prison closed in 2012 (Andrew et al., 2016). It is important to note, although we cannot pursue the story here, that these developments and their parsimonious nature were not the only matters of contextual signifcance. The 1980s also involved widespread reform in the public service in Australia, featuring trends such as program defnitions, program budgets, achievement indicators and the like. Many of these broader developments also infuenced and affected the criminal justice system.

The rationale behind prison privatisation Growth in Australian prisons is currently at the highest of all time, even though the general crime rate has been going down (Knaus, 2017). In December 2018, 42,779 people were incarcerated across Australia’s eight state and territory jurisdictions, and the national imprisonment rate was at 220 prisoners per 100,000 people (Australian Bureau of Statistics [ABS], 2018). As can be seen in Figure 16.1, in the fve years from the December quarter 2013 to the December quarter 2018, the average number of persons in custody in Australia increased by 33% (10,539 persons) (ABS, 2018). Such increases coupled with tight government budgets created extra pressure for building new prisons. There was a view that the private sector could build them quicker and cheaper (Harding et al., 2019; Jesuit Social Services, 2017). A number of Australian government reports over the last two decades have largely supported prison privatisation (Andrew et al., 2016). Kennedy (1988), the New South Wales General Purpose Standing Committee (2009) and the Queensland

FIGURE 16.1

Persons in full-time custody, December 2013 to December 2018

Source: ABS (2018)

Privatisation in Australia 235

Commission of Audit (2013) all argued that prison privatisation would provide prison services with better performance, lower cost, better effciency and stronger accountability and transparency than if they were to remain in the public system. The cost-saving was argued to be based on escalating labour costs. These were typically three-quarters of the operational budget and were heavily infuenced by a strong union presence in state-run prisons. This it was thought could be curbed with privately run prisons (Harding, 1992; O’Toole, 2005). Further, the introduction of privately run prisons would create competition with publicly run prisons, thereby increasing government performance in the sector. Harding (1992), Harding et al. (2019) and Jesuit Social Services (2017) discussed the need for the implementation of innovative prison programs. They believed that such innovation could only occur in the private sector because it has the ability to respond quickly to changing circumstances. Critics of prison privatisation have argued that the state has certain responsibilities, including administering offender punishment, which should not be delegated to the private sector. In addition, they argue correctional operations would be compromised as the bottom line for the private sector is maximising proft by cutting costs and lowering standards (Harding, 1992; O’Toole, 2005). Jesuit Social Services (2017, p. 2) outlined the complexity behind private prison operations arguing that private prison operation is different to the privatisation of other public assets and services, because of the unique nature of prisons, which do not involve manufacture of a standard product, but instead house and seek to reform humans with individual backgrounds and criminogenic profiles. (Jesuit Social Services (2017, p. 2) Further, Harding (1999) discussed the danger of private operators lobbying governments and media to infuence policy – to impose longer and ‘tough on crime’ policies and sentences – to increase their market share. More recently, Jesuit Social Services (2017, p. 4) argued that examples exist in the USA where large corporations who run prisons donate to political parties to infuence their governments to further their agenda. The concern is that these corporations have an incentive to promote not only privatisation but also incarceration instead of proactive criminal justice policy measures to keep people out of prison.

The current state of prison privatisation in Australia In 2019, from a total of 101 prisons across Australia, there are 10 private prisons in the fve most populous states of Australia (Harding et al., 2019). Nine of the 10 are male prisons, the only privately operated female prison being a 254-bed maximum security prison opened in Western Australia in 2016 (Andrew et al., 2016). Table 16.1 provides information about private prisons in Australia.

236 Marietta Martinovic et al. TABLE 16.1

Private prisons in Australia

State

Name of Prison

Operator

Security Classifcation

Capacity

Male/Female prison

Queensland

Arthur Gorrie Correctional Centre

GEO Group

Maximumremand prison

890

Male

Southern Queensland

Serco Aust Pty Ltd

MinimumMaximum

300

Male

Junee Correctional Centre

GEO Group

Minimummedium

790

Male

Parklea Correctional Centre

MTC Broadspectrum

MinimumMaximum

823

Male

Fulham Correctional Centre

GEO Group Australia

Minimummedium

893

Male

Port Phillip Prison

G4S Custodial Services

Maximum

1072

Male

Ravenhall Correctional Centre

GEO Group Australia

Medium security, sentenced and remand

1,300

Male

South Australia

Mount Gambier Prison

G4S Custodial Services

Minimummedium

493

Male

Western Australia

Acacia Prison

Serco Aust Pty Ltd

Medium

1,533

Male

Melaleuca Remand and Reintegration Facility

Sodexo

Maximum sentenced and remand

254

Female

Correctional Centre New South Wales

Victoria

It is also worth noting that within the Australian context there has been some movement from public to private prisons, from private prisons back to public prisons and from one private sector provider to another (Harding et al., 2019). For example: •

In Western Australia a public juvenile facility was reformulated as an adult prison and given to the private sector from the public sector (Harding et al., 2019 does not provide more specific information).

Privatisation in Australia 237

•

•

In Victoria a women’s prison was inadequately managed by the private sector, Corrections Corporation of America (CCA), and was taken back by the public sector (see later on in the chapter) (The Auditor-General’s Report, 2015). Parklea Prison in NSW was managed by GEO but it had serious safety issues and in 2019 it was recontracted to be managed by MTC Broadspectrum (Harding et al., 2019).

The private companies operating private prisons in Australia are global multinationals which also provide services across the USA and UK in a multi-billion-dollar industry (Alizzi, 2012). Five private contractors are responsible for managing over 8,000 Australian prisoners in Australia. These are: 1

2

3

4 5

GEO Group is a USA company with significant operations across the USA. It has been operating in Australia for over 20 years. As shown in Table 16.1, it is currently running four prisons in Australia (GEO Group, 2017). G4S is the largest private corrections provider in the world with numerous correctional and prisoner transport contracts in Australia. As shown in Table 16.1, it is currently running two prisons in Australia (Victorian Auditor – General’s Office (VAGO), 2018). Serco has its origin in the UK and is best known in Australia for running immigration centres and related contracts. As shown in Table 16.1, it is currently running two Australian prisons (Serco, 2019). Sodexo is a relatively small UK company. It is currently running one Australian prison (Sodexo, 2019). MTC Broadspectrum is a part of the Spanish company called Ferrovial Group. It is one of the world’s leading infrastructure operators in services, toll roads, construction and airports. It commenced operating one Australian prison in April 2019 (Broadspectrum, 2019).

One might also note that of the 10 facilities in question eight are operated by three companies. This can be regarded as a signifcant concentration. Overall, there is evidence that there has been some system-wide improvement as a result of privatisation of prison operation due to benchmarks for both prison performance and cost. However, it has also become apparent that the private sector can have the same delivery failures as the public system including riots, self-harm, deaths and escapes (Harding, 2001). Such matters might be seen to refect poorly on the government, as political responsibility – in theory – cannot be outsourced (Harding et al., 2019). The enthusiasm for privatisation of prisons Australia-wide continued until a recent announcement by the QLD government in March 2019 that it would transfer its two private prisons, the Arthur Gorrie Correctional Centre and Southern Queensland Correctional Centre, back to public control over a four-year period as the existing private company contracts expire. This will cost taxpayers $111 million over four years (Vujkovic, 2019). This decision was the result of adverse fndings

238 Marietta Martinovic et al.

from a Crime and Corruption Commission (CCC) Taskforce report. Over a 10-month investigation the CCC watchdog found a dramatic under-reporting of corrupt behaviour by staff, numerous instances where staff supplied drugs and weapons, colluded to avoid searches, enticed prisoners to bash fellow inmates and were involved in inappropriate relationships with prisoners (CCC Queensland, 2018). The CCC chairman, Alan MacSporran, was scathing of the private operators’ misuse of authority as well as prison overcrowding which was proft-driven (Bavas, 2018). Given the seriousness of the problems uncovered it is not surprising that the QLD government stepped in to resume control of the prisons. What is not known is how this decision will impact on other privatised prisons.

Private prisons in Victoria Victoria’s engagement with privatisation was primarily driven by the need to build new infrastructure with limited public resources (O’Toole, 2005). Victoria did not have the overcrowding issues of other states. However, the prison population was growing which Kirby (2000) attributed to legal changes to law enforcement and sentencing policy. The Victoria government announced the closure of Fairlea Women’s Prison in 1993 in favour of the frst-ever privately operated women’s prison at Deer Park (Russell, 1998). The new prison, Deer Park Metropolitan Women’s Correctional Centre, was the frst privately managed prison in Victoria, opening in 1996 and operated by CCA (The Auditor-General’s Report, 2015). Following this, Fulham Correctional Centre and Port Phillip Prison opened in 1997. Of note is that both prisons have been progressively increasing their capacity to accommodate the state’s requirement for growing prison numbers. All private prisons follow the ‘Design, Construct, Finance, Manage’ (DCFM) approach (also known as Build, Own, Operate, Transfer, or BOOT) system, where private providers are responsible for every aspect from design to operations. In contrast to other states, in Victoria these arrangements are also referred to as Public Private Partnerships (PPPs). A PPP is a long-term contract between the public and private sectors generally covering the design, construction, maintenance, management and fnancing of an infrastructure asset (The Auditor-General’s Report, 2015). The PPP with Deer Park Metropolitan Women’s Correctional Centre was shortlived and in 2000 the state government rescinded the contract with CCA (Kirby, 2000; Correctional Service Commissioner Victoria, 2000). The Correctional Service Commissioner’s report outlined the reasons which included assaults on staff, on other prisoners, including two prisoner deaths and the resultant inquests in 1997 and 1998, and arson. According to the Commissioner, CCA had failed to meet the service delivery outcomes for prisoner safety (Correctional Service Commissioner Victoria, 2000), including the level of attempted suicides and self-mutilations which were twice the maximum allowed by the benchmark (see also Andrew et al., 2016). In February 2019, the state of Victoria housed 36.4% of its prisoners in privately managed prisons (Productivity Commission, 2019), an increase of almost 5% over fve years (Productivity Commission, 2015). This is amongst the highest rates of incarcerated people in private prisons in any state of Australia or in the world.

Privatisation in Australia 239

Interestingly the rate of incarceration is growing. While Victoria was the fourth state in Australia to have privately managed prisons, following QLD, NSW and South Australia, it has embraced privatisation enthusiastically and at a faster pace than any other state. Victoria has 14 prisons and one pre-lease centre. Three of these prisons are privately operated as described earlier. •

•

•

Fulham Correctional Centre has a focus on education and activities appropriate to diverting younger prisoners from further penetration into the correctional services system. Fulham’s contract was extended in 2015 for a further 20 years (Corrections Victoria, 2016a; VAGO, 2018). Port Phillip Prison has a dedicated young adult offender unit, an intellectual disability offender unit and houses Victorian prisoners from all correctional facilities requiring offsite medical treatment. Port Phillip Prison had its contract extended in 2017 for 20 years (Corrections Victoria, 2016b; VAGO, 2018). Ravenhall Correctional Centre has a Forensic Mental Health Unit and a Close Supervision Unit, allowing for the safe and effective management of prisoners with mental health issues. Ravenhall Correctional Centre is contracted to own the facility for 25 years (VAGO, 2018).

In an Australian-frst, Ravenhall Prison introduced a payment-by-results model, based on a reduction in reoffending rates. According to Andrew et al. (2016) and Corrections Victoria (2015), this model should ensure the highest levels of accountability to the Victorian taxpayer. The payment-by-results system means the prison will remain focussed on the objective of ‘Safer Victorian Communities’ and will continually seek new ways to reduce the risk of recidivism (GEO Group, 2017). Commitment to the model means the development of new approaches to reducing the risk of reoffending for indigenous prisoners and prisoners with challenging and/or violent behaviours. The model includes integrated and holistic care for prisoners with a mental illness, improved responsiveness to the complexities of young adult prisoners as well as pre- and post-release programs. The philosophy of investing in tackling offending during the sentence is thought to reduce the likelihood of future crimes occurring, whilst also reducing future fnancial and social costs on the Victorian community (Corrections Victoria, 2015; GEO Group, 2017). While the payments by results is an innovative philosophy, it is too early to tell the level of success. While the Productivity Commission (2015) stated that privatisation of prisons in Victoria did not appear to have translated into cost saving, the recent VAGO Report (2018, p 87) showed that “private operators have lower labour costs, but their utility costs (water, electricity and gas) are mixed.”

Privatisation of community corrections Alongside the expansion of the private sector in the building and management of prisons, during the 1990s attention turned to the possibility of the private sector being involved in the delivery of community corrections (McCarthy, Lincoln and

240 Marietta Martinovic et al.

Wilson, 2000). Very little has happened in Australia to parallel the dramatic change in the community correctional landscape in the UK, where most low-risk offenders are managed by non-government service providers in a competitive market (United Kingdom Offender Rehabilitation Act 2014). Payment to providers according to their results in the reduction of reoffending also has almost no current counterparts in Australia. Nonetheless, periodic attempts have been made in community corrections in Australia to travel along the privatisation path. Johnson (1997) has described the intent of the Victorian state government in the 1990s to introduce competition into community corrections as an integral part of its policy reform agenda. There are strong echoes of Osborne and Gaebler’s (1992) Reinventing Government, which applied a business customer service model to government and sought to promote competition both inside and outside the public sector. Options considered in Victoria included: 1

2

3

The contracting out of selected functions or services, with a possible requirement for the responsible public sector agency to expend a certain portion of its budget on contracting out its services to ‘test the waters’ by creating an environment for competition. Offering specific functions or regions for a private provider to competitively bid. In this case a private provider would be in direct competition with the public sector. Giving the courts and the Adult Parole Board the right to decide whom they wanted to manage their orders or related conditions. This was the most radical option (Johnson, 1997).

The frst option was selected. It posed the least risk to government, offered cost reduction opportunities, would ostensibly introduce the concept of benchmarking and stimulate development of a competitive market. A business case was prepared in which the community work program would be outsourced, but a change of state government in 1999 saw further action shelved. One of the authors of this chapter was head of Corrections in Western Australia when two options for privatisation were considered. The frst was the call for tenders for the outsourcing of the community work program in one region with a view to outsourcing across the whole state. Tenders however were more expensive than the existing public sector model. The second involved changing the management of offenders in remote communities with the view that local honorary community corrections offcers should be appointed as contract employees under a competitive bidding process. The result was most of these honorary offcers gave notice of their intention to quit as they objected to becoming contracted employees of the state. The proposal was quietly abandoned. Increasingly, government ‘value for money’ concerns have seen more and more programs put out to tender. Verbal advice to the authors of this chapter (from a CEO providing services to offenders) is that for small agencies with limited scope

Privatisation in Australia 241

to trim overheads or cross-subsidise unproftable services from more remunerative contracts, agency sustainability is becoming more problematic. Not-for-proft agencies provide several ancillary services in community corrections in all Australian jurisdictions. Typically, they relate to the supervision of offenders who are subject to community work conditions; to the provision of offender and family support services; or to treatment services in areas such as drug rehabilitation and mental health. In this model of service provision, nongovernment agencies might compete for public sector business, but they do not compete against the public sector for business. The suitability of Social Impact Bonds as a tool in the management of offenders in the community has more recently engaged the attention of several states. Social Impact Bonds, which move service provision away from public sector monopoly to the non-government sector under an investment by a private organisation with a payment-by-results paradigm, have operated in Australia since 2013. So far, the On TRACC (Transition Reintegration and Community Connection) in New South Wales is the only known program exclusively devoted to community-based adult offenders (Offce of Social Impact Investment, 2017). It aims to provide up to 3,900 parolees with enhanced support and referral services during a fve-year period commencing in September 2016. Its principal success measure is the reduction in reoffending rates by participating parolees in the 12 months after their release from prison. It is premature to forecast the future of this model of service delivery for adult offenders in Australia, but the climate presents as conducive to new opportunities in this area if it can deliver positive cost-effective outcomes.

Conclusion Private prisons have become an integral part of the prison landscape in Australia. To date there is no evidence that privatisation of prisons has had a dramatic effect on the way the industry operates or its effectiveness, although the recent VAGO (2018) report showed a considerable cost saving related to labour costs. There are debates however about the value of the privatisation of prisons. These relate to the long-standing management issues and corruption that occurred at Deer Park Metropolitan Women’s Correctional Centre in the 1990s, and more recently at Parklea and Arthur Gorrie Correctional Centre and Southern Queensland Correctional Centre in 2018. Alongside this is the argument that private providers can lobby governments to increase their market share of prison provision without recognition that alternative services to reduce recidivism and imprisonment is where the money should be allocated. The Australian frst payments-by-results model, at Ravenhall Correctional Centre, is an innovative experiment that could change the landscape of offerings in the public and private sector in Australia and the world if it proves to be successful. Until privatisation of prisons can be proven to be an effective model, it is questionable whether Australia will embrace privatisation of other correctional programs – as has occurred in other countries – or, perhaps why it would do so.

242 Marietta Martinovic et al.

Bibliography Alizzi, J. (2012). Private prisons in Australia: Our 20 year trial. Human Rights in Australia (29.02.02). http://rightnow.org.au/opinion-3/private-prisons-in-australia-our-20-yeartrial/ Andrew, J., Baker, M., and Roberts, P. (2016). Prison Privatisation in Australia: The State of the Nation. Australia: The University of Sydney Business School. Atkinson, A. (1997). The Europeans in Australia: A History. Volume 1. Melbourne: Oxford. The Auditor-General’s Report. (2015). The Auditor-General’s Report on the Annual Financial Report of the State of Victoria, 2014–15. www.anao.gov.au/work/annual-report/ auditor-general-annual-report-2014%E2%80%932015 Australian Bureau of Statistics (ABS). (2018). 4512.0 – Corrective Services, Australia. December quarter 2018. www.abs.gov.au/ausstats/[email protected]/mf/4512.0 Bavas,J. (2018). Queensland Prisons at Risk of‘Signifcant Corruption’,Watchdog Finds. www.abc.net. au/news/2018-12-14/queensland-prisons-at-risk-of-corruption-report-fnds/10620482 Broadspectrum. (2019). Broadspectrum. www.broadspectrum.com/ Brown, A. (1992). Economic Aspects of Prison Privatisation: The Queensland Experience. Paper presented at the Australian Institute of Criminology Conference – Private Sector and Community Involvement in the Criminal Justice System. Wellington, New Zealand. Correctional Service Commissioner Victoria. (2000). Metropolitan Women’s Correctional Centre’s Compliance with its Contractual Obligation and Prison Services Agreement. www.parliament. vic.gov.au/vufnd/Record/44900 Corrections Victoria. (2015). Project Summary – Partnerships Victoria Ravenhall Prison Project. www.corrections.vic.gov.au Corrections Victoria. (2016a). Partnerships Victoria Fulham Correctional Centre Contract Extension. Melbourne: Victoria Government. www.corrections.vic.gov.au Corrections Victoria. (2016b). Partnerships Victoria Port Phillip Prison Contract Extension. Melbourne: Victoria Government. www.corrections.vic.gov.au Crime and Corruption Commission Queensland. (2018). Taskforce Flaxton: An Examination of Corruption Risks and Corruption in Queensland Prisons. https://www.ccc.qld.gov.au/ sites/default/fles/Docs/Public-Hearings/Flaxton/Taskforce-Flaxton-An-examinationof-corruption-risks-and-corruption-in-qld-prisons-Report-2018.pdf Department of Justice & Regulation in conjunction with the Department of Treasury and Finance (DJR & DTF). Garton, S. (1990). Out of Luck: Poor Australians and Social Welfare 1788–1988. Sydney: Allen & Unwin. GEO Group. (2017). Ravenhall Correctional Centre – World-Leading Continuum of Care. www. geogroup.com.au/ravenhall-correctional-centre.html Grabosky, P. (1977). Sydney in Ferment: Crime, Dissent and Offcial Reaction 1977 to 1973. Canberra: Australian National University Press. Harding, R. (1992). Private Prisons in Australia. Trends and issues in Criminal Justice No 36. Australian Institute of Criminology, Canberra, Australia. Harding, R. (1999). Prison privatisation: The debate starts to mature. Current Issues in Criminal Justice, 11, 2, p. 109–118. Harding, R. (2001). Private prisons. In M. Tonry (Ed.), Crime and Justice: A Review of Research (Vol. 28, p. 626–655). Chicago: Chicago University Press. Harding, R., Rynne, J., and Thomsen, L. (2019). History of privatised corrections. Criminology and Public Policy, 18, 2, p. 241–267. https://onlinelibrary.wiley.com/doi/full/ 10.1111/1745-9133.12426

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Hughes, R. (1987). The Fatal Shore. London: Collins. Jesuit Social Services. (2017). Outsourcing Community Safety: Can Private Prisons Work for Public Good? http://jss.org.au/wp-content/uploads/2017/11/Private-Prisons-Position-Paper2017-FINAL.pdf Johnson, G. (1997): Models for Contracting Out Community Corrections. Paper presented at the Australian Institute of Criminology Conference – Privatisation and Public Policy: A Correctional Case Study. Melbourne, 16–17 June 1997. Kennedy, J. (1988). Commission of Review into Corrective Services in Queensland: Final Report. Queensland, Australia King, H. (1966). Sir Richard Bourke (1777–1855). Australian Dictionary of Biography http:// adb.anu.edu.au/biography/bourke-sir-richard-1806 Kirby, P. (2000). Independent Investigation into the Management and Operations of Victoria’s Private Prisons. Melbourne: Offce of Correctional Services Commissioner Knaus, C. (2017). Prisons at breaking point but Australia is still addicted to incarceration. The Guardian (29.12.17). www.theguardian.com/australia-news/2017/dec/29/ prisons-at-breaking-point-but-australia-is-still-addicted-to-incarceration Macintyre, S. (1985). Winners and Losers: The Pursuit of Social Justice in Australian History. Sydney: Allen & Unwin. McCarthy, C.,Lincoln,R.,and Wilson,P. (2000). Privatising Community Corrections. Bond University, Australia. www.researchgate.net/publication/27826890_Privatising_Community_ Corrections Ministry of Justice. (2018). Offender Management Statistics Quarterly. Retrieved from www. gov.uk/government/collections/offender-management-statistics-quarterly New South Wales General Purpose Standing Committee. (2009) Inquiry into the Privatisation of Prisons and Prison-related Services. (Report 21). Legislative Council, Sydney, Australia. O’Toole, S. (2005). Privatisation in the corrections industry. In S. O’Toole and S. Eyland (Eds.), Corrections Criminology. Sydney: Hawkins Press. Offce of Social Impact Investment. (2017). On TRACC Helping Parolees Re-integrate into the Community. www.osii.nsw.gov.au/assets/offce-of-social-impact-investment/OnTraccFactsheet-FINAL.pdf Osborne, D. and Gaebler, T. (1992). Reinventing Government. New York: Penguin Press. Payne, H. (1961). A statistical study of female convicts in Tasmania, 1843–53. Tasmanian Historical Research Association, Papers and proceedings, 9, 2, p. 56–69. Peyser, D. (1939). A study of the history of welfare work in Sydney from 1788 till about 1900. Royal Australian Historical Society Journal and Proceedings, XXV, part 2, p. 89–128. Productivity Commission. (2015). Report on Government Services. Chapter 8 – Corrective Services. www.pc.gov.au/research/ongoing/report-on-government-services/2015/justice/ corrective-services/rogs-2015-volumec-chapter8.pdf Productivity Commission. (2019). Report on Government Services. Chapter 8 – Corrective Services. www.pc.gov.au/research/ongoing/report-on-government-services/2019/justice/ corrective-services/rogs-2019-partc-chapter8.pdf Queensland Commission of Audit. (2013). Queensland Commission of Audit: Final Report (Volume 3). QCA, Brisbane, Australia. Russell, E. (1998). Fairlea: The History of a Women’s Prison in Australia 1956–96. Victoria: CORE. www.corrections.vic.gov.au/sites/default/fles/embridge_cache/emshare/original/ public/2019/04/7d/c32cb936e/2_contents.pdf Serco. (2019). Welcome to SERCO Asia Pacifc. www.serco.com/aspac Sodexo. (2019). Sodexo Profle. https://au.sodexo.com/home/about-us.html

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United Kingdom Offender Rehabilitation Act 2014. Explanatory notes. www.legistlation.gov. uk/ukpga/2014/11/notes Victorian Auditor – General’s Offce. (VAGO). (2018). Safety and Cost Effectiveness of Private Prisons. Victorian Government, Melbourne Australia. https://www.audit.vic.gov.au/ sites/default/fles/2018-03/20180328-Private-Prisons.pdf Vujkovic, M. (2019). Queensland Government to run two privately owned prisons in bid to reduce assaults. ABC News. www.abc.net.au/news/2019-03-26/queensland-privateprisons-to-be-run-by-state-government/10938192

17 CORRECTIONAL PRIVATIZATION IN THE UNITED STATES Brett C. Burkhardt and Story Edison

Correctional privatization is big business in the United States. Today, the dominant suppliers of private correctional services – CoreCivic, GEO Group, and MTC – generate billions of dollars in revenue, contract with governments at all levels (federal, state, and local), and provide services in a variety of correctional domains. The modern industry has operated since the 1980s, and historical precursors date to at least the 1800s. With its extensive history, much has been written about private corrections in the US. However, several gaps remain in our knowledge. The goal of this chapter is to survey what we know about the extent, performance, and politics of correctional privatization in the US, while also pointing future researchers and policymakers to promising avenues of inquiry or experimentation.

The origins of correctional privatization in the United States Private corrections in the United States predates the founding of the country. Since at least the 17th century, England shipped certain convicted offenders to foreign shores as part of their punishment. In 1718, Parliament passed a law institutionalizing transportation as an offcial criminal sentence. Over much of the 18th century, private contractors shipped roughly 50,000 convicts to the American colonies, where they were put to work for fxed amounts of time. Custody of the convicts (as well as their labor power) thus transferred from English authorities to private shippers (Feeley, 2002; Harding et al., 2019). In the 19th century, as the penitentiary became a common form of punishment in the US, states began to experiment with convict leasing. Convict leasing consisted of states leasing prisoners to private business or land owners, who would take on the responsibility of feeding, housing, and disciplining the inmates. In exchange, the private lessee was allowed to exploit the labor power of the prisoners. Louisiana

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experimented with such an arrangement in 1841, when the state permitted a private frm to take custody of prisoners in its penitentiary. It tasked the prisoners with building levees along the Mississippi River or manufacturing goods inside the prison walls. Initially, Louisiana wanted simply to cut down on the expense of having a prison, and it leased the prisoners at no charge. After recognizing how valuable this captive labor was to the contractor, the state soon began charging a fee for use of its prisoners (Bauer, 2018). Convict leasing expanded after the US Civil War. In 1865, the states ratifed the 13th Amendment to the US Constitution. The Amendment banned slavery in the US, but it provided an exception for involuntary servitude when applied “as punishment for a crime whereof the party shall have been duly convicted.” This clause permitted the use of forced prison labor, which states quickly sought to exploit (Hallett, 2006). This was a fnancial boon for the private entities as the cost associated with prisoner labor was a fraction of that of traditional laborers (Lichtenstien, 1996). The new supply of cheap labor was especially attractive to private land owners who had previously relied on slave labor (Hallett, 2006). State lessors granted the lessees latitude to use convicts as they saw ft. With no state oversight, working and living conditions for many leased convicts were subhuman. Prisoners were tortured, humiliated, and neglected. The result was an incredibly high death rate, which rivaled that of the later Soviet gulags (Bauer, 2018; Mancini, 1996). The convict leasing system, and the postbellum imprisonment regime more generally, had a distinct racial element. Most leased convicts were Black men who had previously been slaves. This was in large part due to punishing former slaves for petty crimes, such as vagrancy, loitering, and trespassing. Moreover, the sentences they received were unprecedented in length, spanning far longer than the sentences given to Whites for similar infractions (Lichtenstien,1996). As a result,the prison population shifted to become predominantly Black (Sheldon, 2001: 170). In Georgia, for example, the imprisonment rate of Blacks was 12 times that of Whites in 1880 (Muller, 2018). By the 1920s, convict leasing had fallen out of favor. Discontent among the prisoners led to riots against their captors. Humanitarian reformers decried prisoner maltreatment, injuries, and deaths. These reformers maintained that the private companies were responsible, as they had been charged with the care of the convicts (Schneider, 1999; Sozzani, 2001). Free workers also contested the convict leasing system, which suppressed demand for free labor. In some states, groups of free laborers engaged in pitched battles against the private militias overseeing convict labor camps (Bauer, 2018). In brief, convict leasing became morally suspect and fnancially unprofitable. While this form of convict leasing receded in the early 20th century, it set a precedent for the current privatization of the corrections system in the United States.

Modern correctional privatization in the United States The modern era of correctional privatization in the US began in earnest in the 1980s. At that time, two social forces combined to make correctional privatization appealing: increased punishment and fscal conservatism. First, the 1980s marked

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the onset of three decades of steep and sustained growth in criminal punishment. At frst, the punitive response was a plausible reaction to a period of relatively high crime, which had been increasing since the 1960s. But the harsh response continued long after crime rates had begun to fall. States and the federal government experimented with a range of punitive policies and practices. Legislatures passed laws intended to increase the severity of criminal penalties, including 3-strikes, “truth in sentencing,” and mandatory minimum sentences (Blumstein and Beck, 1999; Raphael and Stoll, 2013; Reitz, 2011). Prosecutors fled more felony charges against criminal defendants (Pfaff, 2017). Police ramped up their enforcement of drug laws (Alexander, 2010; Balko, 2013). Predictably, prison populations grew. From 1975 to 2009, the combined jail and prison incarceration rate in the US increased fve-fold, going from roughly 100 (per 100,000 residents) to nearly 500. By 2009, roughly 1.52 million people were held in federal or state prison and another 760,000 were held in local jails (Raphael and Stoll, 2013). The growth in incarceration outpaced governments’ capacity to build prisons and jails. Consequently, prisons became increasingly crowded and unsafe. By 1993, 40 states were under a mandatory court order or a negotiated consent decree to alleviate problems of crowding or conditions (Koren, 1993). The second force that encouraged correctional privatization was fscal conservatism, which combined veneration of markets, suspicion of government, and antipathy to taxes. The election of President Ronald Reagan, in 1980, exemplifed this trend. In 1982, President Regan formed the President’s Private Sector Survey on Cost Control (informally, “the Grace Commission”), which was tasked with identifying waste and ineffciency in the federal government. The Commission proposed more than 2,000 reforms, many of which involved transferring government responsibilities to the private sector (Eisen, 2018; President’s Private Sector Survey on Cost Control, 1983). The valorization of the private sector continued through the 1990s, with calls to “reinvent government” (Osborne and Gaebler, 1992) by incorporating private sector management practices into public administration (Kamensky, 1996; Kettl, 2002). Undergirding this call for smaller, nimbler government was an organized opposition to taxes, which had been brewing since the 1970s (Martin, 2008). Private organizations saw their opportunity to capitalize on the need for more prisons and the government’s desire to reduce spending. They promised to provide quality correctional solutions at a bargain price. These private frms, according to advocates, would be inspired by fnancial and managerial innovations in the private sector and would thrive on newly introduced market competition (Burkhardt, 2014, 2018; Dolovich, 2009). Governments at all levels took notice and began to partner with private corrections frms. One of the frst entrants into the private market for imprisonment was Corrections Corporation of America (CCA), which formed in 1983. Its frst contract called for CCA to build, own, and manage an immigrant detention facility in Houston, Texas. Another frm, Wackenhut Corrections Corporation, entered the corrections market in 1984. Wackenhut won its frst contract (to build and operate an immigrant detention center) in 1987.

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Today, these two companies do business as CoreCivic (formerly CCA) and GEO Group (formerly Wackenhut), and they dominate the corrections industry. Both are publicly owned corporations traded on the New York Stock Exchange. CoreCivic generates US$1.7 billion in revenue and employs nearly 13,000 employees. It operates more than 70 correctional, detention, and re-entry facilities, which can hold approximately 78,000 inmates (CoreCivic, 2018). GEO Group employs more than 18,000 people and manages more than 90,000 beds at 135 correctional, detention, and community-based facilities worldwide. It generated more than US$2.2 billion in revenue in 2017, with its U.S. Corrections & Detention division generating twothirds of that amount (US$1.4 billion) (GEO Group, 2018a). A third major player in the industry, Management & Training Corporation (MTC), is a privately held company employing 8,500 people. Its corrections division operates 21 centers for the federal government and six states (MTC, n.d.). Today, the services provided by these and other frms in the private corrections industry can be grouped into three broad categories: incarceration, immigrant detention, and non-custodial services. The focal point of the private corrections industry has been incarceration in prisons (and to a lesser extent jails). Unlike the earlier convict leasing era, in which private enterprises would pay the state for access to a captive labor force, the modern form of prison privatization involves a state paying a private contractor to house and feed inmates. (Payment from the government makes the arrangement fnancially viable for the frms, which are not legally allowed to exploit the labor of their prisoners.) Currently, there are at least 190 privately operated prisons and detention centers in the United States (Eisen, 2018). These facilities are located in 28 states throughout the US. States vary widely in their use of private prison contracts; some states abjure them entirely, while others (e.g., Montana, Oklahoma, and New Mexico) send more than 20 percent of their inmates to private prisons (Carson, 2018). Nationally, there are more than 128,000 prisoners held in private prisons. This is a large number, but it remains a fraction (approximately 8%) of the entire prison population in the US. Private frms have been less successful in taking over operation of jails, which are generally operated by local authorities and hold detainees awaiting trial and those serving short sentences. By 2013, only 39 jails were operated by private frms (Minton et al., 2015). Additionally, the US Marshals Service, which detains people being processed by federal courts, holds more than 9,000 people in private facilities (Gaes, 2019). Prison privatization has long been premised on minimizing costs. This has led observers to claim that private prison frms select the cream of the prisoner crop: healthy inmates with few medical, mental, or behavioral needs (Friedmann, 2014). Research seems to support this, fnding that most private prisons in the US house low-security inmates with short sentences (Burkhardt, 2017b; Hallett, 2006). In addition, some research also suggests private prisons avoid contracts that would require them to incarcerate old or infrm prisoners (Duwe and Clark, 2013; Friedmann, 2014; Petrella and Begley, 2013; Pranis, 2005). Immigrant detention has long been a part of US private corrections; CoreCivic and GEO Group each won their initial incarceration contract from federal

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immigration authorities, in 1984 and 1987, respectively (Harding et al., 2019). Since then, immigrant detention has become increasingly important to the industry. Two federal agencies, the Bureau of Prisons (BOP) and Immigration and Customs Enforcement (ICE), account for most immigrant detentions. Since 1999, BOP has contracted with private frms to operate so-called Criminal Alien Requirement (CAR) prisons, whose primary function is to hold immigrants convicted of federal crimes. As of 2014, 13 private CAR prisons held more than 25,000 non-citizen prisoners (ACLU, 2014). Perhaps more importantly, the federal Immigration and Customs Enforcement (ICE) agency detains a vast number of immigrants who are neither awaiting criminal trials nor serving a custodial sentence. Rather, this population of immigrants is being held while they await a determination regarding their immigration status in the US. Although this form of immigrant detention is a civil process, it nonetheless entails forcible detention and restrictions on liberty (Eisen, 2018). ICE has become heavily reliant on contracts with private frms; as of 2016, 65% of ICE detainees were held in private detention centers (Homeland Security Advisory Council, 2016). In addition to incarceration, private corrections frms are increasingly providing non-custodial services. More governments are contracting with private frms to supervise people convicted of misdemeanors or less severe felonies and sentenced to probation in the community. This form of contracting typically shifts the cost of such supervision from the government onto the individual (Eisen, 2018; Latessa and Lovins, 2019). Local governments in at least seven states permit private probation supervision (Human Rights Watch, 2018). The private sector is also heavily involved in community re-entry programs, which involve drug treatment, mental health counseling, sex offender rehabilitation, and educational programming (Latessa and Lovins, 2019). GEO Group, for example, operates 64 non-custodial Day Reporting Centers in nine states, where participants are offered cognitivebehavioral therapy, drug testing and treatment, and skills building (GEO Group, 2018a). Private companies also offer new technologies – including GPS tracking, voice verifcation, and internet activity monitoring – used to surveil people in the community (Latessa and Lovins, 2019).

Empirical evaluations of quality and cost While the private frms have provided these correctional services in the US for the last 40 years, there is still no robust evidence that private providers are better (or worse) than their public counterparts. This uncertainty is due to the lack of methodologically sound comparisons of the two sectors. For many years, claims about the superiority and cost-effciency of the private sector were based on examinations of few cases (Perrone and Pratt, 2003). Rigorous empirical evaluations of cost and quality were rare, in part because there were so few instances of correctional privatization in action at the time. As correctional privatization became more common, researchers slowly began to take advantage of the increased occurrence of privatization. In particular, they moved beyond case studies (or case comparisons)

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to examine a large number of private and public prisons while attempting to adequately account for confounding factors. The best studies use extensive statistical controls, quasi-experimental designs, and matching procedures to ensure that the private operations analyzed are comparable to their public counterparts (Gaes, 2019; Wooldredge and Cochran, 2019). After all, comparing two sets of prisons that differ dramatically in size, mission, and population is like comparing “apples to fsh” (Friedmann, 2014: 503). Two recent articles review extant work on private-public comparisons. Both fnd the evidence base thin and mixed, and unable to support broad claims that one sector is superior to the other. Focusing on prison performance, Gaes (2019) found mixed evidence regarding the effects of privatization on prisoner recidivism. Bales et al. (2005) found that spending time in a private prison in Florida did not affect prisoners’ recidivism rates. Wooldredge and Cochran (2019) reached a similar conclusion regarding prisoners in Ohio. But studies in Minnesota (Duwe and Clark, 2013) and Mississippi (Mukherjee, 2014) found evidence of elevated recidivism rates among prisoners who had stayed in private prisons. Pratt (2019) recently reviewed the state of the research on cost-beneft analyses of privatized corrections (with much of it focused on private prisons). He concluded that there is not much research, and what exists does not yield defnitive answers about which sector is more cost-effcient. He argues that the mixed nature of the fndings, rather than settling the debate, instead provide ammunition for advocates on both sides to deploy selectively in debates. These reviews lead to the somewhat unsatisfying conclusion offered by Gaes (2019): the empirical research literature “do[es] not show that one sector is, on average, more effcient than the other” (also see Lindsey and Mears, 2018). Moving forward, it may be wise to shift the conversation away from simple private-public comparisons and instead focus on the details of contracts (Pfaff,2016). As with any legal contract, a contract for a private correctional service specifes certain obligations and consequences for non-compliance. Government authorities should seek to draft contracts in such a way that private frms are incentivized to respect inmates’ rights, provide proper programs, and ensure a safe environment. While it may not be possible to specify all elements of incarceration in a contract (Hart et al., 1997), contracts should nonetheless be used to encourage socially desirable models of corrections (Wright, 2009).

Politics of private corrections Correctional privatization is a partisan political issue in the United States, where public discourse and political debates tend to focus narrowly on prison privatization. The partisan nature of the issue was exemplifed in the 2016 presidential election campaign, when the candidates for the two major parties adopted starkly different positions. The two major candidates vying for the Democratic nomination, Bernie Sanders and Hillary Clinton, vowed to place strict limits on prison privatization, and both announced that they would not accept campaign donations from the industry

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(Eisen, 2018; Jackson, 2015; Monica, 2016). In contrast, the Republican candidate – and eventual President – Donald Trump, touted private prisons, saying, “I think we can do a lot of privatizations and private prisons. It seems to work a lot better” (Mark, 2016). Private corrections frms generously directed hundreds of thousands of dollars to the Trump campaign, his inauguration, and related political action committees (Burkhardt, 2019; Gidda, 2017). The donations appear to have been well spent. The Trump administration has made a number of moves that bode well for the industry or for specifc frms (discussed further in the following section). Despite the recent partisanship of the issue, the implementation of prison privatization has not historically occurred on a strictly partisan basis. Numerous studies of prison privatization in US states have examined whether party control of state government is associated with privatization. Most studies show no direct link between party (specifcally, Republican) control of state government and prison privatization. However, prison privatization has been empirically linked to other proxies for partisan power, including conservative political ideology (Burkhardt, 2017b; Jing, 2010; Nicholson-Crotty, 2004) and (inversely) labor union strength (Burkhardt, 2017b; Gunderson, 2017). Politics is, of course, somewhat dependent on the will of the voters. In the US, we know surprisingly little about what the public thinks about correctional privatization (Frost et al., 2019). Only a handful of studies have asked people whether they support private corrections. Becker and MacKelprang surveyed 740 state legislators in 1989 and found that 44% of respondents supported private contracts for prison operation, 38% opposed, and 18% were neutral. Respondents to a 1996 survey of Michigan residents were more critical of private prisons (Thompson and Elling, 2000). The vast majority (85%) reported that government agencies should operate maximum security prisons, with only 10% and 5% saying that for-proft and non-proft frms should be allowed to do the same, respectively. Only slightly more respondents supported for-proft (15%) or non-proft (8%) operation of minimum security prisons. More recently, Enns and Ramirez (2018) surveyed a sample of US adults and asked about their level of support for private “operation of prisons” and “detention of illegal immigrants.” A plurality of respondents opposed both practices (41% opposed and 51% opposed, respectively). Still, more than a third (36%) supported private prisons, and more than a quarter (28%) supported private immigrant detention. Levels of support were higher for self-declared Republicans, Whites, those expressing racial resentment, and those with a belief in corporate effciency and public-mindedness. The issue of private corrections is contested in the public sphere. Since the early years of the industry, various organized groups have mounted public pressure campaigns against private prison companies. For example, labor unions have long opposed privatization. Public prison guards are unionized in 38 states (Page, 2011a). Those union jobs are threatened by privatization, as private prisons do not permit their workers to organize and bargain collectively. Labor unions have used lawsuits, campaign contributions, and lobbying to limit the spread of private prisons (Page, 2011b; Schartmueller, 2014).

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Students have also formed groups to oppose private prisons. Organized student opposition dates to at least the late 1990s, when student activists at a number of universities successfully pressured administrators to terminate food service contracts with Sodexho Marriott, which had an 8% ownership stake in CCA (Culp, 2005). Student protest has continued over the years. In 2013, students at Florida Atlantic University forced the university to rescind its plan to name the football stadium after the GEO Group (Allen, 2013). More recently, students have begun to pressure universities to divest from their ownership stakes in private prison frms. In 2015, student protesters successfully pressed Columbia University and the University of California to divest from private prison frms, and similar campaigns are under way at other universities (Eisen, 2018; Freedom to Thrive, 2019). Some religious organizations have also taken public stands against prison privatization. A variety of faith-based groups have called for an end to prison privatization, including the US General Assembly of the Presbyterian Church, the Methodist Federation for Social Action, and the (Quaker) American Friends Service Committee (Black, 2012; Culp, 2005). Additionally, the Institute of Sisters of Mercy of the Americas, an international religious order, is engaged in a campaign to buy up shares of private prison companies to force reforms in how they operate (Blanco, 2015).

Looking ahead Three trends are likely to shape private corrections in the US moving forward: ongoing criminal justice reform, immigration crackdowns, and new fnancing models. The past decade has witnessed a furry of reforms aimed at reducing US reliance on imprisonment (Green, 2015). Reforms have been justifed on the grounds of cost, religion, libertarian philosophy, equity, and human dignity. As a result of numerous varied reforms (and a relatively low rate of crime), the prison population in the US has fallen from its peak in 2009 (Carson, 2018). For an industry whose proftability is premised on locking people up, this is not good news. Players in the industry recognize this. For example, then-CCA declared in a report to shareholders, “The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by criminal laws” (CCA, 2016: 31). In response to softening demand for prison beds, the big frms in the industry have been expanding into non-custodial correctional services. In 2017, GEO Group spent US$360 million to acquire Community Education Centers, which delivers rehabilitation programming in and out of prison (Burkhardt, 2017a). And in 2018, CoreCivic acquired Rocky Mountain Offender Management Systems, which will increase its capacity for electronic monitoring and drug testing (CoreCivic, 2019). In a refection of their shift into the “softer” end of corrections, CoreCivic and GEO have created divisions with titles like “Community, Safety, and Properties” (CoreCivic, n.d.) and “GEO Care” (GEO Group, 2018b), respectively.

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Another area of expansion for the industry is immigrant detention, which has become a critical piece of private corrections frms’ portfolios. In recent years, contracts with federal Immigration and Customs Enforcement for immigrant detention have made up roughly one quarter of revenues for GEO and CoreCivic (CCA, 2016; GEO Group, 2018a). The Trump administration’s antipathy toward immigrants has bolstered demand for detention capacity. Among other actions, the administration has expanded the pool of non-citizens eligible for detention and removal; strengthened immigration enforcement in the interior of the US; and ordered more people to be held in detention while awaiting a hearing on their immigration status (Mark, 2017; US Department of Homeland Security, 2017a, 2017b). The mutual reliance of federal immigration authorities and private corrections frms seems poised to last into the near future. Moving forward, we may witness greater experimentation with new modes of fnancing private corrections. Critics have long claimed that private contracts for incarceration compensate companies for the number of prisoners detained, with no regard for the quality of services provided or ultimate outcomes. Such an arrangement incentivizes a frm to keep more inmates locked up for longer. It does not incentivize “correction” – i.e., positive changes in a person’s behavior. In response, actors in the public and private sectors have experimented with social impact bonds, or SIBs. A SIB is premised on the principle of “pay for success,” which has developed in the UK. In the context of corrections, service providers (or those that invest in them) are paid if and only if the provider achieves certain predetermined and measurable outcomes (e.g., a 10% reduction in recidivism among participants). A typical SIB involves several parties. Private investors front the money to pay for a correctional service. A private organization delivers the service. A third-party frm evaluates the performance to determine whether the service delivered on its goals. In the end, a government agency pays investors if the program is a success. They pay nothing if the program fails to achieve its goals (Baliga, 2013; Cordes et al., 2018; Myers and Goddard, 2018). The frst correctional SIB in the US occurred in 2012. In that case, the investment bank Goldman Sachs invested $10 million to fund a rehabilitation program for juveniles in New York City’s Rikers Island Jail.1 An independent evaluation concluded that the program did not produce the desired 10% reduction in jail readmissions, and New York City paid nothing for the program (Parsons et al., 2016). At least seven other criminal justice-related SIBs have since been launched in the US (Social Finance, 2019). Thus far, the body of evidence on SIBs remains inconclusive. But SIBs have several features that make them attractive to audiences that may be otherwise skeptical of correctional privatization. Most importantly, a SIB explicitly defnes and seeks to achieve a socially desirable outcome (e.g., reduced recidivism). Additionally, government (and taxpayers) pay only if the provider delivers on the socially desirable outcome. SIBs are still rare in the US, but they may become more common as policymakers seek new ways to reform criminal justice practices in an era of shrinking budgets (Aviram, 2015).

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Conclusion The United States led the way in modern forms of private corrections, and it shows few signs of easing up on such contracting. In short, privatization in the criminal justice system is likely here for the long term. With that said, we should expect to see changes in the nature of private corrections moving forward. Rather than being primarily built on incarceration, the industry is poised to diversify. Private corrections in the future will include not just prisons and jails but electronic monitoring, parole and probation supervision, drug testing and treatment, re-entry programs, as well as immigrant detention. This diversifcation will protect the industry from efforts to reform the criminal justice system and reduce the country’s reliance on prisons and jails.

Note 1 Bloomberg Philanthropies guaranteed a US$6 million payment to Goldman Sachs in the event of a loss, thereby minimizing Goldman’s risk.

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INDEX

accountability, of local probation 18–20 anti-welfare thinking 20–21 ASBO’s 32 Australia, privatisation in Ch. 16 passim; extent of private prisons in 235–238; history of privatisation in 232–234; private prisons, in 231; rationale of privatisation, in 234–235

contestability 23–24, 34, 72 contracts, for CRCs: bidding for 163–165; management of 172–173; transitional period of 165–167 corruption, in Eastern Europe 222 Crime and Corruption Commission 238 Crime Concern 53, 83, 176, 178–179 curfews, with Electronic Monitoring 35

binary hurdle 106

Eastern Europe, criminological characteristics of 217; offenders in prison in 217; private prisons in 228 electronic monitoring Ch. 3 passim, 180–181; in Eastern Europe Ch. 15 passim electronic monitoring and commerce 35–37; and internet 34–35; and probation service 33, 37 Electronic Monitoring Directorate 39–43

Cameron, David 100 Carillian 7 Carter, Lord 22, 23–24, 184 Clarke, Kenneth. 66 Clinks 74, 94 combative neo liberalism 34 community corrections 234–236 community orders Ch. 14 passim; community sanctions Ch. 3 passim; supervision of Ch. 14 passim Community Rehabilitation Companies (CRCs) Ch. 5, Ch. 6 passim, 4; operating models of 209; and PbR 104–105; sentencing and 69, 171–172; sex offenders and. 170–171; staffing of 167–168; and the voluntary sector 74 community sanctions Ch. 3 passim compliance: of contracts, for CRCs 172; and legitimacy 190 (see also legitimacy); of probation Ch. 11 passim Conservative Party, and attitude to welfare 20–21, 50, 52

Gauke, David 71, 84, 86, 94, 95 GPS tracking 35–37, 39–41, 63 Grayling, Chris 24, 65, 66, 82, 84, 86, 96, 99 HMIP report 25, 27, 65, 66, 69, 70, 74, 76, Ch. 6 passim, 91, 92–93, 207–208; see also Stacey, Glenys HMPPS see National Offender Management Service (NOMS) House of Commons Justice Committee Report 89 Howard League for Penal Reform 16

260 Index

immigrant detention, in USA 249–250, 253 Interserve 73, 83 legitimacy Ch. 13 passim; and compliance 190; defined 190–191; and external legitimacy 189–190; and internal legitimacy 189–190; see also self-legitimacy legitimacy and probation Ch. 11 passim, 192–194; see also Transforming Rehabilitation (TR) lock in effect 73–74 minimum viable product 39–41 National Association for the Care and Resettlement of Offenders (NACRO) 165, 176, 178 National Association of Probation Officers (NAPO) 3, 16, 27 National Audit Office 6–7, 16, 26, 38, 65, 101, 107 National Offender Management Service (NOMS) 52, 71, 147, 198; see also HMPPS National Probation Service Ch. 2 passim, 63, 65, 69; control of 18–20; history of 28; work of 6, 74, 79; see also Community Rehabilitation Companies (CRCs) Neighbourhood Watch 53 neo liberalism see combative neo liberalism; punitive neoliberalism neo liberalism and criminal justice 23–27, 32–35; in Eastern Europe 218; and gift relationship 63; types of 34; and voluntary services 155 New Labour and criminal justice 22–24, 145 New World think tank 38–39 non-custodial services 249 Norfolk and Suffolk CRC Ch. 11 passim normative liberalism 34 Offender Rehabilitation Act 69, 89; see also Transforming Rehabilitation (TR) offenders, and privatisation 6 outsourcing: defined 8, 115–116, 183; and fraud 39; and legitimacy 192; and private security 130–134 (supply of goods 130–134); regulation of, in private security 135–138 Payment by Results (PbR) 65, 66, 72. and Ch. 7 passim; in Australia 239; and

CRCs 104–105 (and supervision of offenders 203–204; and TR 104); defined 99–100; effectiveness 101–102; failures of 103–104; performance 106–108; successes 102–103 PFI (and PF2) 7; defined 15, 18 policing and privatisation Ch. 8 passim; and public enquiries 118–119 Policy Exchange 36–37 pre-sentence reports 70 prisoner escorts. 182 Prison Officers Association 3 prison population: in UK 72; in USA 15, Ch. 16 passim Prison Reform Trust 83, 89 private security and privatisation Ch. 9 passim; capital accumulation by 129; costs of 131; extent of 132–133; and fear of crime 129 private security regulation of Ch. 9 passim, 134; vs. public security 134 privatisation: background of 4–7, 18–20, 49; debate 52, 54–56, Ch. 7 passim; defined 7–8, 115–116, 127, 182–183, 215; future of 6–8, 187, 252–253; opponents of 4–6, 185–186, 250–251; and profits of 5–7, 24–26; support for 6–8, 251 probation, private in USA 63 probation ideal, collapse of Ch. 4 passim Probation Inspectorate Reports 38, 146; see also Stacey, Glenys probation supervision 206–207; and with CRCs 207; and legitimacy 66; and PbR 108–109 Property Transfer Scheme 169 punitive neoliberalism 34 Purple Futures 83 Rehabilitation Activity Requirement (RAR) 69, 172 rehabilitative ideal 52, Ch. 5 passim Reid, John 22 Safe Cities 53 secure training centres 181–182 Security Industry Authority 137 self-legitimacy see legitimacy sentencing of offenders 68 Serious Fraud Office 38 Social Impact Bonds (SIB) 253 Sodexo 73, 84, 165, 167–170, 237 Stacey, Glenys. 74, 84, 86, 87, 88, 89, 97, 107; see also HMIP report Statement of National Objectives and Priorities (SNOP) 56

Index

Stewart, Rory. 95 Straw Jack 22 Strengthening Probation, Building Confidence 78, 113 Suffolk CRC see Norfolk and Suffolk CRC supervision of offenders under probation Ch. 14 passim Through the Gate services Ch. 6 passim, Ch. 14 passim, 170–171, 211; duties of providers 87; offender`s views of 91 Transforming Rehabilitation (TR) 18, 24–29, 37, 57, Ch. 5 passim, 63, 65, Ch. 11 passim; background to 18–20

261

United States of America, privatisation in Ch. 16 passim; cost of privatisation in 249–250; extent of privatisation in 246–248; origins of privatisation in 245–246; prison population in 247 Voluntary and Community Sector (VCS) 66 voluntary sector organisations, history of 143–146; commissioning of services 149–150; criminal justice Ch. 10 passim; CROs 142, 145–146; and neo liberalism 155; and privatisation, Ch. 10 passim Working Links 86, 294