Prisons, Politics and Practices in England and Wales 1945–2020: The Operational Management Issues 3030842762, 9783030842765

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Prisons, Politics and Practices in England and Wales 1945–2020 The Operational Management Issues David J. Cornwell

Prisons, Politics and Practices in England and Wales 1945–2020 “The problems of the English penal system are well documented, but David Cornwell’s book is a timely and original analysis of the failures of successive governments to tackle fundamental questions surrounding the growing prison population and high recidivism rates. Cornwell writes in a very engaging, lucid and authoritative style; his arguments are effectively marshalled and persuasively developed. The book is undoubtedly one of the best accounts of the evolution of penal policy in modern times and is highly recommended.” —Professor Jonathan Doak, Nottingham Trent University, UK

David J. Cornwell

Prisons, Politics and Practices in England and Wales 1945–2020 The Operational Management Issues

David J. Cornwell Banbury, Oxfordshire, UK

ISBN 978-3-030-84276-5 ISBN 978-3-030-84277-2 https://doi.org/10.1007/978-3-030-84277-2

(eBook)

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

Foreword

One of the most troubling elements of the modern penal system is its continuing failure to reduce reoffending and to provide a safe and constructive environment for prisoners. The imprisonment rate in England and Wales is the highest in Western Europe and successive governments have failed to address the issues of penal expansion, humane containment, and rehabilitation adequately. These problems have been highlighted further during the pandemic which has increased the burdens on prisoners and staff. This monograph is therefore very timely, arriving during a period of high levels of imprisonment and prison violence, problems with drugs, staff shortages, poor conditions, shrinking resources and insufficient access to rehabilitative activities, as well as high levels of self-harm. David Cornwell offers a critical examination of the performance of the penal process since 1945, with a focus on adult male prisons. This trajectory is marked by key milestones including, inter alia, the 1990 riots and subsequent Woolf Report, the commitment to prison building and tough on crime policies by successive governments, the 2003 Criminal Justice Act, and the creation of the Ministry of Justice in 2007 and the impact

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of organisational changes and public spending cuts in the last decade. These policies and legislation have contributed to the continuing problems of overcrowding while attempts to deal with spiralling costs through privatisation have proved problematic. The author offers a commentary on a developmental process in criminal justice and treats the so-called penal crisis of the 1990s and subsequent years as the culmination of the decline within that process stretching back to the 1960s. A constant turnover of Ministers responsible for Justice has added to the instability of the penal system, as well as confusion over the purposes of prison which has meant a reliance on short-term measures, rather than addressing more fundamental questions including the problem of recidivism, despite a reliance on deterrence based sentencing. The constant changes in leadership and in the structure of correctional services have added the sense of a lack of control and the failure to solve key problems such as overcrowding. The book recognises the problems faced by staff in negotiating this process in the context of a lack of leadership and consistency and centralisation and managerialism. Cornwell reflects, in this monograph, on the reasons for the current malaise, placing the topic in its historical, social and political context. The inconsistencies in governmental thinking, policy-making, and legislation in relation to the purposes of punishment and imprisonment during the period under review, as well as the indecisiveness in the management of prisons at the strategic operational level are highlighted. The need for statutory controls over the use of custody, especially in relation to shorter sentences, is advocated. The failure to provide effective and demanding community penalties to divert low-risk offenders from the formal court process and from custody is also discussed. The author is eminently placed to comment on the current prison crisis, given his extensive experience of working within the UK prison system, as well as his familiarity with other jurisdictions. The author approaches the issue broadly and offers a wide-sweeping analysis of the subject matter. Discussions of recent developments, including the failure of the outsourcing of probation and the escalation of violence and drug use inside prison, are included. This book offers an overview and critique of the way penal policy and practice have been dealt with by successive

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governments who have tried to outbid each other for public support in demonstrating their toughness on crime and punishment. While much of the discussion makes depressing reading, the author argues strongly for penal reform, with practical suggestions pointing to a way forward and to provide a criminal justice system fit for purpose. Why the UK criminal justice process is so different from comparable European societies is questioned and an agenda for change, in view of the formidable social and economic costs of penal expansion, is proposed. Recommendations include a statutory limit on overcrowding, the transfer of remand prisoners to secure accommodation outside prison, changes in sentencing policy, a moratorium on prison building and an expansion of community sanctions and greater use of restorative justice. The author raises the issue of whether a Royal Commission on the Penal System of England and Wales would be the best solution to address problems faced by the criminal justice process now and in the immediate future, to protect the criminal justice process from arbitrary and partisan political pressures. This book will be of interest to those working within the prison system, as well as to students and researchers of penology and criminology, and to members of the public with an interest in penal matters but it should also be read by policymakers and politicians. June 2021

Susan Easton Brunel University London, UK

Susan Easton who has provided the Foreword for this book is a Barrister and Professor of Law at Brunel University. She is a specialist on prisoners’ rights and author of The Politics of the Prison and the Prisoner: Zoon Politikon (Routledge, 2018) and Prisoners’ Rights: Principles and Practice (Routledge, 2011). She is co-author (with Christine Piper) of the textbook Sentencing and Punishment: the Quest for Justice, Oxford University Press, 2016. (4th Edition), and has also taught undergraduates in UK prisons.

Preface

This book is a reflection on half of a working lifetime spent within the prisons of England and Wales, visiting prisons in a number of European countries, and latterly participating in an advisory capacity within the prisons system in the Republic of South Africa between 1997 and 2004. Some of these prisons were public sector establishments: others operated in the private sector of Correctional Services. In more recent years of semi-retirement, there has been time to reflect upon these experiences and resume an active research interest in their criminological and social policy implications. The work is concerned with adult male (18 years and older) prisons in England and Wales that hold convicted prisoners, including Local prisons that also house adult male persons remanded in custody by the courts awaiting trial, conviction and sentencing. It does not deal with prisons for women, Immigration Removal Centres (IRCs), or provisions for the custody of juvenile offenders within the separate Youth Custody sector. I would not claim that working in prisons has been an overwhelmingly enriching experience since such places are ultimately depositories for the

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more wicked, ruthless, cunning, manipulative, socially disadvantaged and often feckless outcasts of every society. However, the social purpose of prisons is to accommodate such people in conditions deemed acceptable and appropriate by governments as a political expedient. Whether these conditions are decent, humane, purposeful or change-inducing is entirely a matter of how they are managed within the resource constraints that determine their operational effectiveness. Prison staff are a unique breed of professional people with various extents of dedication to the task of dealing with their charges in a disciplined and undiscriminating manner, but with a duty of care for their reasonable welfare and social functioning. They work daily within a stressful and sometimes dangerous environment which can be hostile, volatile and threatening in adverse circumstances. Like police officers they deserve public admiration and support for the service they provide, and the diligence and bravery with which they perform their statutory duties. All of this stated, the penal process of England and Wales is and has for decades past existed in an appallingly dysfunctional state of political mismanagement and operational crisis as this work must testify if honesty is to prevail. The use (and misuse) of imprisonment as the ultimate punishment within a democratic society has been abused in a progressively more intensive manner in pursuit of crime control rather than crime reduction, and in the interests of political expediency rather than of social necessity. These facts are indisputable and amount to a damning indictment of the state of our national civilisation in every sense of that word and its definition. But this does not answer the question about what needs to be done to resolve the situation within a process that has become so structurally infected with viruses that it has become pathogenic. Structures in such a condition normally have to be demolished, sanitised and re-built, but the penal process is a living organism for which such treatment cannot be envisaged. Radical reform is, however, still a conceivable option, but it would need a social and political consensus that it is now urgently required. That is a central message within this work. To comprehend this need it is necessary to understand how the penal malaise has developed and deepened over the post-War years since 1945,

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and in particular, the nature of the viruses that have contributed to its pathogenic state. Part One of this work is designed to deliver that understanding. Part Two is focused on the contemporary situation of the penal process, why it is vulnerable to the failure of prisons on an operational basis, and how, given the necessary consensus, it could be re-configured to deliver an increased likelihood of crime reduction. Many of the overall recommendations within this book stem from considerations in earlier work to which reference is made on a number of occasions. Of particular note here is the extraordinary ambivalence of successive governments in the new millennium towards the introduction and implementation of restorative justice practices which could have made a significant and timely contribution towards practical penal reform. That these were neglected for largely ideological reasons and on the specious premise that they were not ‘evidence-led’ was a singular exercise in obfuscation: they were certainly no less ‘evidence-led’ than persistence with un-provable deterrence doctrine as a cardinal principle of criminal punishment, the IPP and ESPP sentencing provisions of CJA 2003, or the outsourcing of offender supervision to CRCs in the Offender Rehabilitation Act 2014. The reader will also note that this work does not address in any detail the complex issue of prisoners’ rights which, while remaining an important historical and contemporary matter of controversy in prison life, could occupy an entire volume of study and analysis. Reference is made in Part One to the causes of prison disorder during the period of the 1980s and 1990s in which the ‘rights issue’ was undoubtedly a contributory feature to the widespread prison unrest in the UK and the USA in particular. This much stated, however, the more dominant causes of the penal crisis in England and Wales were of ‘conditions’ and ‘numbers’ which successive governments failed to resolve to any satisfactory extent, and which remain the primary focus of concern within this work. Of similar concern is the fact that in the aftermath of the widespread April 1990 riots at Strangeways Prison Manchester and elsewhere, the (then) and successive governments largely disregarded the causal symptoms of the unrest, and allowed the custodial penal population to escalate out of control through failure to establish restrictions on the sentencing practices in the courts, and the passage of subsequent legislation bound

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to exacerbate the overcrowded state of the prisons. This legacy of failure and neglect perpetuated the penal crisis into the first two decades of the new millennium, while at the same time denying prisons any hope that they might have had of re-establishing disciplined, controlled, safe, and purposeful regime conditions. For these, and for many other reasons that will be encountered throughout this book, it concludes on a sombre note. Where and if prisons in England and Wales fail through overcrowding, lack of adequate regime resources, or staffing provision to reduce recidivism as many presently do fail, it is because they have become politically condemned to do so. Only a system-wide consensus for extensive and determined reform of the entire penal process can remedy such a situation. This work is dedicated to those who manage and operate our prisons under the prevailing adverse conditions of their profession, and to those who may seek to understand how and why their task has become so difficult to accomplish with morality and humanity. Banbury, Oxfordshire, UK June 2021

David J. Cornwell

Acknowledgements

Since this book represents the culminating point in a career spanning some forty-three years of active involvement in the fields of criminal justice practice, research, and latterly writing, I reflect that I owe an immense debt of gratitude to a number of former and contemporary friends and colleagues who have guided my path along the road to this publication. In particular I wish to thank the late Professor Kathleen Jones and Dr. Tony Fowles who inspired my interest in criminology at York University in the first instance in the 1980s and onwards. Thereafter, my thanks to my former publishers Bryan Gibson at Waterside Press UK, and Selma Soetenhorst-Hoedt at Eleven Publishing International, Den Haag, Netherlands, who patiently steered my earlier works into print on a number of successive occasions. Over the intervening years I wish to acknowledge the advice, assistance, and encouragement so generously given by Siriol David, Charles Erickson, Martin Seddon, Martin Wright, Sir Louis Blom-Cooper QC, James Dignan, Christine Piper, and Susan Easton in the UK; by John Blad and Bas van Stokkom in The Netherlands; by Lode Walgrave,

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Acknowledgements

Paul De Hert, and Serge Gutwirth (Belgium); Jean-Pierre BonaféSchmitt (France); Thomas Trenczek (Germany); Federico Reggio (Italy); Per Andersen (Norway); Tapio Lappi-Seppälä (Finland); Borbála Fellegi (Hungary); Ann-Mari Hesselink, Nico Luwes and Ann Skelton (RSA); Mark Umbreit (USA); Robert Cormier (Canada); Heather Strang, Claire Spivakovsky, and John Braithwaite (Australia); and FWM (Fred) McElrea (New Zealand). To former friends and colleagues within HM Prison Service between 1981 and 1997, and Group4 Correction Services Bloemfontein RSA from 1997 to 2003, my gratitude for their companionship and support during times good, bad, and indifferent, for their cheerfulness and fortitude, and for their loyalty in sometimes stressful circumstances which was exemplary. Also, sincere thanks to Susan Easton for her excellent and penetrating Foreword to this book, to Martin Wasik and Jonathan Doak for their endorsements, and to Josephine Taylor, Liam Inscoe-Jones, Supraja Ganesh, Ranjith Mohan and their teams at Palgrave Macmillan who have so professionally brought this work to life. And finally to my partner Jean who has stoically endured the lengthy period of its preparation.

Books by the Same Author

Criminal Punishment and Restorative Justice, Waterside Press, UK, 2006. Doing Justice Better: The Politics of Restorative Justice, Waterside Press, UK, 2007. The Penal Crisis and The Clapham Omnibus, Waterside Press„ UK, 2009. Civilising Criminal Justice: An International Agenda for Penal Reform, [Edited with John Blad& Martin Wright]. Waterside Press, UK, 2013. Mercy: A Restorative Philosophy, UK: Waterside Press, 2014. Desert in a Reparative Frame: Re-defining Contemporary Criminal Justice, Eleven International Publishing, Den Haag, NL, 2016. Criminal Deterrence Theory: The History, Myths & Realities, Eleven International Publishing, Den Haag, NL, 2018.

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Contents

Part I

Prisons and Penology: A Survey of Post-war England and Wales 1945–2020

1

Introduction and Overview of This Book Preliminary Observations The Outline of This Book Part Two References

2

Change and Uncertainty in Penal Strategies 1945–1991 Strategic Post-war Penal Policies—The Rehabilitative Ideal ‘Humane Containment’ Emergence of the ‘Justice Model’ of Corrections Strategic Paralysis in the Late 1980s Strangeways, April 1990 and the Aftermath Conclusions from Chapter 2 References

3 4 8 11 12 13 13 16 18 22 25 29 32

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Contents

Prisons, Managerialism and Privatisation 1991–1997 The Early 1990s: Prisons at the Crossroads Managerialism and Privatisation: Twin Pillars of a New Penal Strategy Resurgence of the ‘Law and Order’ Mantra Post-1992 The Judicial Response Further Problems with Prison Privatisation Turmoil and Confusion Post-Whitemoor Towards the End of an Era Conclusion to Chapter 3 References Re-branding the ‘Toc’ Image: New Labour 1997–2007 As It Was in May 1997 Chasing the Crime Control Dragon New Millennium: New Approaches or Old Ones Revived? CJA 2003—A Colossus of Ideological Obfuscation Criminal Dangerousness and Its Punishment in CJA 2003 The Aftermath of CJA 2003 References Penality and the Ministry of Justice Era 2007–2020 An Uncertain Beginning Creation of the Ministry of Justice 2007 Carter Redivivus and the State of the Prisons 2007–2008 Into the Doldrums: 2008–2010 2010–2020: A Decade of ‘Busy Going Nowhere’ Looking Ahead: Conclusions from Part One References

Part II 6

35 35 39 42 45 48 49 53 56 57 59 59 61 67 73 76 79 85 87 87 89 93 98 102 110 115

A Vision for the Prisons of the Future

Strategic Management of Prisons: Structure and Style Introduction to Part Two

121 121

Contents

HMPPS: Chimerical Vision or Marriage of Inconvenience? Structural Uncertainty in Prisons Management Restoring Strategic Reputation and Style Within HMPPS Conclusions from This Chapter References 7

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125 129 132 142 144

Towards ‘Doing Justice Better’ Learning from the Lessons of the Past Scoping the Potential for Custodial Reduction What Does ‘Doing Justice Better’ Mean? Reparative and Restorative Justice: The Neglected Link in Contemporary Corrections References

145 145 148 152

8

Making Prisons Fit for Purpose Defining the Purpose of Prisons Making Prisons More Purposeful Centralisation and Devolution in Prison Governance Re-conceiving a Reformative Ethic References

165 165 170 174 177 180

9

Beyond the Prison Walls Prisons in a Community Context Bridging the Custody: Community Divide Prisons and Their Neighbourhood Communities Is There a Role for Reparative Justice in a Unified Correctional Process? References

183 183 184 187

Summation and Conclusions The Starting Point Prisons: Their Use and Abuse The Politics of Criminal Justice Practices and Malpractices in the Penal Process

199 199 201 205 212

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Contents

The Need for Systematic Future Research into the Penal Process References

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Appendix 1

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Appendix 2

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Appendix 3

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Author’s Postscript

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Bibliography

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Index

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About the Author

David J. Cornwell was educated at Christ’s Hospital School, Horsham, and the Royal Military Academy, Sandhurst. He is a former Army Officer, Prison Governor, Consultant Criminologist and Author, focusing predominantly on issues in penal philosophy, criminal punishment, restorative justice, and mediation. While working in the Prison Service of England and Wales from 1981 to 1997, he held posts as an Assistant Governor at HMP Northallerton, HMP Wakefield, and HMYOI Deerbolt. Subsequently he became a Tutor at HM Prison Service College, Wakefield, and later was Deputy Governor and Acting Governor of HMP Frankland near Durham. Finally, he was Head of Security Audit in the Standards Audit Unit of HM Prison Service in which capacity he visited and audited security procedures in more than eighty prisons before retiring and moving to the private sector with Group 4 Securitas in late 1997. Like others who were present throughout the twenty-five days of the Strangeways riot at Manchester in April 1990, David Cornwell reflects that leading the Negotiation Team within the almost destroyed structure

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of the prison to persuade prisoners to surrender was a life-changing experience. Never before in prisons had negotiation skills been tested to such a challenging extent and duration, and his pride in his Team’s bravery and professional performance remains undiminished to this day. With Group 4 he was Head of Operations during the commissioning and opening phases of HMP Altcourse in Liverpool, and subsequently moved to the company’s HQ at Broadway, Worcestershire from where he was deployed to the Republic of South Africa and worked in the capacity of Operations Adviser during the construction, commissioning and opening of Mangaung Maximum Security Prison—eventually a 3000-bed facility near Bloemfontein in the Free State Province—between 1998 and 2004. The prison was one of the first two privately operated prisons in the country within the Department of Correctional Services. On ceasing active working in prisons in 2004, David Cornwell resumed a research interest in criminology which started at York University when he left military service in the Army after twenty-three years, serving in the United Kingdom, Germany, the Far East and the Middle East between 1956 and 1979. He completed both his Master’s and Doctoral degree studies at York University in 1980 and 1989, respectively. He is the Author of seven previous books in the fields of criminology, penology, and philosophy listed in this work and of numerous journal articles and conference papers during the years between 1983 and the present time. He has also visited a number of prisons in Western Europe, Poland, and South Africa during the same period. He is a Yorkshire person by adoption, having the misfortune not to be born in that county, though his children are, all but one, Yorkshire born. He maintains an active interest in choral singing, rugby football, and cricket and presently lives in Banbury, Oxfordshire, England with his partner Jean.

Abbreviations and Acronyms

ACCC ACPS ACR A-PPAG ASBO AUR BOV CCC CCTV CJ&CSA CJA CJF Cm, Cmnd., CM CNA CofE Covid-19 CP CPS CRC CSEW

Area Community Corrections Centre Advisory Council on the Penal System Automatic Conditional Release All-Party Penal Affairs Group Anti-Social Behaviour Order Automatic Unconditional Release Board of Visitors Community Corrections Centre Closed Circuit Television Criminal Justice & Court Services Act Criminal Justice Act Community Justice Forum All abbreviations for Command (Paper) Certified Normal Accommodation Church of England Coronavirus Pandemic 2019 Consultation Paper Crown Prosecution Service Community Rehabilitation Company Crime Survey England & Wales

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CSO DCA DCMF DCR DIA DIP DOC DSP DST DTO ECL EDS EFF EROL ESPP FGC FTE GBH GBP HC HCJC HDC HMC&TS HMCIP HMP HMPPS HMSO HMYOI HORPU HORU IfG IMB IPP IRC ISPP JAC LRC LSC

Abbreviations and Acronyms

Community Sentence Order Department for Constitutional Affairs Design, Construct, Manage and Finance (Prisons) Discretionary Conditional Release Directorate of Inmate Administration Directorate of Inmate Programmes Directorate of Custody Directorate of Sentence Planning Dedicated Search Team Detention and Training Order End of Custody Licence Extended Determinate Sentence Esmée Fairbairn Foundation Early Release on Licence Extended Sentence for Public Protection Family Group Conferencing Full-Time Equivalent Grievous Bodily Harm British Pounds Sterling House of Commons House of Commons Justice Committee Home Detention Curfew HM Courts & Tribunals Service Her Majesty’s Chief Inspector of Prisons or Probation (for England & Wales) Her Majesty’s Prison Her Majesty’s Prison and Probation Service Her Majesty’s Stationery Office Her Majesty’s Young Offender Institution Home Office Research & Planning Unit Home Office Research Unit Institute for Government Independent Monitoring Board Imprisonment for Public Protection Immigration Removal Centre Indeterminate Sentence for Public Protection Judicial Appointments Commission Local Review Committee Legal Services Commission

Abbreviations and Acronyms

LSI MBWA MoJ NACRO NAPO NEC NGPB NOMS NPS Op. Cap. PA-PPAG PCC PFI POA PSIF R&RJ RJ ROTL SAP SCWG SGC SGWG SIR SOR SSU STC TOC TUC USA USI VOM VWGF YJB YOT

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Local Security Instruction Management by Walking About Ministry of Justice National Association for the Care and Resettlement of Offenders National Association of Probation Officers National Executive Committee (of POA) Non-Governmental Public Body National Offender Management Service National Probation Service Operational Capacity Parliamentary All-Party Penal Affairs Group Police & Crime Commissioner Private Finance Initiative Prison Officer’s Association Prison Service Industries & Farms Reparative and Restorative Justice Restorative Justice Release on Temporary Licence Sentencing Advisory Panel Sentencing Commission Working Group Sentencing Guidelines Council Sentencing Guidelines Working Group Security Information Report Sex Offender Register Special Secure Unit Secure Training Centre Tough (or Toughness) on Crime Trades Union Congress United States of America Unlawful Sexual Intercourse Victim Offender Mediation Victim and Witness General Fund Youth Justice Board Youth Offending Team

List of Figures

Fig. 1.1

Fig. 5.1

Fig. 6.1 Fig. 6.2 Fig. A.1

Average daily prison population—England & Wales 1945–2020 (Source Author’s Archived Statistics and Ministry of Justice 2016: 2—Chart 1) Ministry of Justice and Associated Ministries—Organisation Structure (as at August 2020) (Notes *The Parole Board is a Non-Governmental Public Body sponsored by the Ministry of Justice; **The Youth Justice Board is a Non-Departmental Public Body; # Denotes former Department for Constitutional Affairs [DCA] agencies) HM prison and probation service organisation chart—CEO, DG and Director Structure The causal sequence of the prisons crisis Community justice forums—Suggested composition (Note * denotes membership of the Standing Committee, a Formation as an Agency of the Ministry of Justice recommended in Cornwell, 2016, op. cit.: 119–121, b Representation at Town/City Council level as appropriate)

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93 126 133

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List of Tables

Table 6.1 Table 7.1

Table 7.2 Table A.1

Comparative imprisonment rates—Western Europe 2019–20 (Select) Prison population, England and Wales by sentence length—Prisoners sentenced to immediate custody, remanded in Custody and non-criminal detainees as at 30 June 2019 Sentenced prison population, England and Wales by main offence group as at 23 July 2019 Chronological table of Criminal Justice Legislation, Prime Ministers, Home and Justice Secretaries 1945–2020

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148 149

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Part I Prisons and Penology: A Survey of Post-war England and Wales 1945–2020

1 Introduction and Overview of This Book

Many people who might be tempted to pick up and open this book may be only vaguely familiar with the way in which Her Majesty’s Prison Service in England and Wales has survived and functioned in the changing social environment of mainland Britain since the end of World War 2. Prisons are unusual places within the social structure of most nations, dedicated to the exclusion of sentenced citizens found guilty of crime in the courts from day to day life within society for greater or lesser periods of time. Loss of liberty is a serious matter within democracies and places considerable responsibility and a duty of care upon those who work in prisons to keep people committed to their charge in secure, safe and humane conditions until they are released back into society. This is no simple task. Many prisoners are resentful about their exclusion, unwilling to conform to the necessary rules and conditions that imprisonment imposes, and uncooperative towards those who have to enforce them. A considerable number display symptoms of social disadvantage in their lives manifested in limited communication skills, literacy, physical and mental health, addictions, fractured relationships with their families and close others, and multiple criminal convictions reaching back into teenage years and even late childhood. Many would © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_1

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be homeless on release, and have no vision of the future other than the likelihood of returning to prison. This work is predominantly about adult male prisons in England and Wales since 1945, and the policies and practices that have driven their performance as an essential public service since that era. During the period covered, considerable change has taken place in the criminal justice process of England and Wales, much of it in recent decades not for the better in terms of penal policies as will become evident. Practices in the operation of prisons have also been inconsistently and erratically managed, adding confusion as to the purposes of imprisonment in the control or reduction of crime in the wider society. Partisan politics within governments, and media influences upon them, have much to answer for in this regard. Figure 1.1 indicates how the size of the average daily prison population in England and Wales has escalated, particularly since the early 1990s. Prisons have not been enabled to keep pace with this increasing volume, leading to the scourge of overcrowding, poor conditions and impoverished regimes in many custodial establishments. Overcrowding has many dysfunctional outcomes within prisons including an increasing prevalence of violence, drug cultures, self-harming behaviour among prisoners and stress-related sickness affecting prison staff. The strategic organisational structure and culture of the Prison Service itself have also undergone significant change over the period covered in this account, much of it due to external influences deriving from structural turbulence in the approaches of successive governments to the management of public sector services including privatisation and budgetary control constraints. In addition, the impact of ‘managerialism’ and centralisation discussed in this work has induced cultural change within many departmental organisations and the delivery of their services to the nation.

Preliminary Observations As its title implies, this work is concerned with the strategic and operational direction of the penal process of England and Wales during the

1 Introduction and Overview of This Book

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85,000 80,000

- [December 2020]

75,000 -

Population in Custody

70,000 65,000 60,000 55,000 50,000 45,000 40,000 35,000 30,000 25,000 20,000 1948 1958 1968 1978 1988 1998 2008 2018

Fig. 1.1 Average daily prison population—England & Wales 1945–2020 (Source Author’s Archived Statistics and Ministry of Justice 2016: 2—Chart 1)

post-World War 2 period in a general sense, and of the use (and abuse) of prisons and imprisonment in particular within that era. The primary focus of attention is on those prisons holding convicted and sentenced adult male (18 years and older) persons who comprise over eighty per cent of the total daily prison population, and to a lesser extent on establishments for the detention of those who are remanded in custody by the courts awaiting trial or sentence, female offenders, and younger (under eighteen years) detainees in the youth custody sector. In particular, it should be noted that within the adult custodial sector the female estate comprises eleven of the one hundred and twenty-one prison establishments in England and Wales, holding only four per cent of the total prison population and amounting to 3,126 persons as at 20 January 2021. None of these prisons was significantly overcrowded

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at that time, and regime conditions within the majority of them are of a generally more modern and progressive standard than those widely found in the adult male sector. Although in the year to June 2020 some six thousand women entered these prisons either on remand or sentenced, the majority of those sentenced (62 per cent ) were serving terms of less than or equal to six months in duration, and a further 11 per cent sentences of over six months up to less than twelve months. The majority (55 per cent ) were committed for non-violent offences (mainly theft and summary offences), and only 14 per cent for offences of violence (Prison ReformTrust 2019: 36–37). The social characteristics of female and male prisoners also differ significantly, more than half of the women having suffered emotional, physical or sexual abuse (53 per cent ), and a slightly lesser (48 per cent ) proportion having committed their offences to support the drug use of someone else. Many also had attempted suicide at some point in their lives (40 per cent ) (Ibid.: 38).1 For comparative purposes within this work, therefore, it was deemed inappropriate other than in sentencing terms to equate these two significantly different populations.2 The term ‘penal process’ is used in preference to the widely adopted descriptor ‘penal system’because, as will become evident in many parts of this book, arrangements for the administration of criminal justice in England and Wales are widely ‘un-systematic’ in a strategic sense. This lack of cohesiveness has, over many years past, considerably affected the delivery of effective justice within both the custodial and non-custodial sectors of the process. The strategic direction of the criminal justice process is vested in parliament for its legislative authority, and subsequently in a range of Departments of State and Agencies clustered around the Ministry of Justice (MoJ) formed as recently as 2007 for its strategic management.3 1 The corresponding male statistics for adult male prisoners were 27, 22 and 21 per cent respectively. 2 Later in this work it will be suggested that a case can be made for the abandonment of short-term prison sentences on the basis that such sentences are counter-productive in reducing post-sentence recidivism within twelve months of release from prison custody. 3 Prior to May 2007, the focal entity of the criminal justice process was the Home Office headed by the Secretary of State for the Home Department referred to in this work as the Home Secretary.

1 Introduction and Overview of This Book

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This Ministry and its constituent elements is headed by the Lord Chancellor and Secretary of State for Justice (aka. the Justice Secretary) and includes two principal components which are HM Courts and Tribunal Service and HM Prison and Probation Service (HMPPS).4 It should also be noted that this organisational structure includes no reference to the role of the Judiciary (Judges and Magistrates) who, since the Constitutional Reform Act 2005, are appointed independently by the Judicial Appointments Commission (JAC) in England and Wales with the final approval of the Lord Chief Justice or the Senior President of Tribunals in respect of Judges, and the Senior Presiding Judge for England and Wales in respect of Magistrates. This procedural provision preserves what is known as the ‘Separation of Powers’ of historical origin,5 making the judiciary largely independent of the Executive function of government. The nature and implications of this arrangement recur at intervals in the discussions within this work. Strategies and policies for the administration of criminal justice are devised within the Ministry of Justice, predominantly by civil servants and some professional practitioners who form the permanent staff of the departments mentioned previously, and who work solely for departmental Ministers of State. During the post-World War 2 era it was customary for governments to commission universities with expertise in criminal justice research to undertake in-depth studies and research to evaluate policy and practice options to inform the process of legislative decision-making. Funding for this purpose was made available in the Criminal Justice Act 1948, and in 1957 the Home Office Research Unit (HORU) was established to coordinate such research, administer research funding, and undertake in-house studies using its own research staff and resources. However, by the late 1970s considerably less government funding became available for external research, and the HORU became increasingly dependent upon its own research capacity as the findings and recommendations of external research, however appropriate, 4 HMPPSwas formed in 2017 by the amalgamation of HM Prison Service and the National Probation Service as a single entity. The latter Service was formerly responsible for the operation of 21 private sector Community Rehabilitation Companies (CRCs) which are to be discontinued from December 2019 onwards on expiry of their existing contracts. 5 Although it has no constitutional status.

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could not be guaranteed to be consistent with the advice that ministers wished to receive and implement in terms of government policy initiatives. As a result, and due also to the increasing influence of the emerging ‘managerialist’ approach to public sector governance,6 recourse to external research became rare and the HORU itself was eventually replaced by a newly formed in-house Home Office Research and Planning Unit (HORPU) in the early 1980s.

The Outline of This Book Part One of this book is time sequenced and devoted to a critical examination and analysis of the performance of the penal process and prisons in the post-War era up to the present time. It is presented in four chapters (1945–1991, 1991–1997, 1997–2007 and 2007–2020), each of a significantly different nature in relation to the events described within them. These chapters provide essential background reading for students of criminology and social policy as well as for other readers who have a more general interest in penal affairs and the functioning of the penal process within the governmental environment during these particular periods. Chapter 2 deals with the manner in which changing approaches to criminal punishment during the 1945–1991 period influenced penal strategies, and yet created uncertainties about the essential nature of criminal justice purposes and delivery within the social structure of England and Wales and elsewhere worldwide. These changes brought increasing turbulence within the prison system which eventually endured widespread rioting and disorder culminating in the infamous riot at Strangeways Prison inManchester and in many other prisons across the country in April 1990. These disturbances were not confined to prisons alone, but also mirrored civil disturbance in many urban areas of English cities during the same period.

6

This development in the late 1980s and 1990s is discussed in some considerable detail in Chapter 3 of this work.

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Chapter 3 describes the impact of the 1990 disturbances and the conduct of the investigation into their causes by Lord Justice Woolf and Judge Stephen Tumim upon both the government and the penal policies that emerged in the aftermath. The same chapter also considers the simultaneous emergence of what became known as the managerialist ideological ethos in the conduct of state governance of public sector services during the 1990s, including the naissance of privatisation which was to have considerable implications for the structure of the Prison Service, its strategic management, its operational effectiveness in overcrowded conditions, and its climate of disruptive industrial relations. The sudden change of direction in penal politics occasioned by the ‘Prison Works’ declaration by Home Secretary Michael Howard in October 1993 (also described in Chapter 2) had a profoundly limiting effect on the implementation of the recommendations of the Woolf Inquiry and caused the subsequent sharp increase in the size of the prison population. The ‘tough on crime’ mantra was established, and with it a hardening of governmental attitudes towards criminals, sentencing, and the operation of the penal process. The situation was worsened by the two notorious escapes of prisoners from high security prisons at Whitemoor and Parkhurst in late 1994 and early 1995 which led to the dismissal of the widely admired Director General of the Prison Service Derek Lewis from his post. However, the prevailing mood within the country was tiring of the eighteen-year span of Conservative rule as the General Election of 1st May 1997 approached. Chapter 4 charts the train of events following that election won by the New Labour Party led by Tony Blair with Jack Straw as Home Secretary. It was a crushing defeat for the Conservative government of John Major leaving his Party with only 165 seats, and New Labour with a majority of 178 seats in the House of Commons paving the way clear for the new government to introduce almost any criminal justice policies that it chose to implement. That initially it chose in the Crime (Sentences) Act 1997 to implement measures to introduce mandatory minimum sentencing designed by its predecessors was a bizarre turn of events, though it clearly signalled a preference for a crime control rather than a crime reduction model of criminal justice within future legislation.

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As this chapter indicates very clearly, there followed an increasingly fervid period of governmental preoccupation with criminal justice issues, culminating in the Criminal Justice Act 2003—a gargantuan piece of legislation leading to the introduction of the indeterminate Imprisonment for Public Protection (IPP) and Extended Sentence for Public Protection (ESPP) measures that would inevitably increase the size of the prison population to a considerable extent. The impact and aftermath of this Act, analysed in detail in Chapter 4, were to confirm very strongly the New Labour commitment to a crime control agenda, no matter what outcomes it would have within the wider criminal justice process and the prisons in particular. The final chapter of Part One of this work (Chapter 5) deals with the decision to create the Ministry of Justice announced on 29th March 2007, its subsequent formation and functioning to the present time, and its implications for criminal justice administration in England and Wales which are explained in a sequential manner. The monolithic nature of the Ministry of Justice, its succession of Justice Secretaries, and the return of the Conservative Party to power in 2010 (albeit in the form of a coalition with theLiberal Democratic Party) are examined to reveal the turbulent nature of this period. The succession of U-turns in criminal justice policies in combination with the effects of stringent budgetary reductions imposed on public sector Departments of State including the Ministry of Justicefrom 2010 onwards, become focal aspects of this chapter. The latter, in particular, was to have devastating effect on the frontline workforce of the Prison Service, while the decision taken in 2013–2014 to outsource the supervision of low and medium risk offenders and ex-prisoners to the private sector in the form of Community Rehabilitation Companies (CRCs) was to place the Probation Service in a somewhat similar situation. Though both issues were eventually resolved to a limited extent and in different ways by 2019 as will be seen, their legacy was to leave both Services in considerable disarray as the 2020s began. By the end of Chapter 5, the reader will be left to ponder how much more politically inspired disturbance the criminal justice process could stand without disintegration, and how this could be averted.

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Part Two The second part of this work is of an entirely different nature. In its five relatively short chapters, it draws out a number of recurring themes from Part One of this work for further and more critical discussion. Principally, these are: • The strategic structural management of prisons in England and Wales as it developed since 1945, and in particular in the 1990s and the present millennium (Chapter 6); • The lessons from past failures in the management of prisons caused by partisan political policy-making and neglect of informed advice in relation to reformative strategies to resolve the enduring penal crisis since the 1990s (Chapter 7); • Confusion about the purposes of imprisonment and the capability of prisons to contribute towards crime reduction (Chapter 8); and • The unresolved relationship between prisons and non-custodial justice, and the potential for inclusion of community participation including reparative and restorative practices in the criminaljustice process (Chapter 9). This book ends with a final Chapter 10 in which an overall summary of the work is offered, and conclusions are drawn. No specific recommendations are made other than those implicit in the text as written, save only to re-iterate the now pressing need for a Royal Commission on the Penal System of England and Wales to be established to resolve the issues raised and the urgent need for penal reform. For many of the reasons emerging from Part Two, the time has come to stabilise the criminal justice process and protect it from the arbitrary and partisan political behaviour of governments for electoral advantage that has characterised the past three decades. The monolithic and over-centralised nature of the Ministry of Justice and its performance since its foundation in 2007 needs serious re-appraisal, as does the operational potential of HM Prison and Probation Service established in 2017. Only a Royal Commission can accomplish such a task since the level of debate that it implies lies above and beyond that of parliamentary political consideration.

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This work also, by inference, suggests that there are several areas of much-needed academic research that remain to be undertaken if the criminal justice process of England and Wales is to be made fit for purpose in the 2020s and beyond. These arise from consideration of the book in its historical entirety, but in particular the pattern of events that emerged from the mid-1990s and onwards, and their impact upon the delivery of criminal justice in the present millennium. In the final part of Chapter 9, an attempt is made to identify in summary terms the more urgently needed of these research areas, and what such research might be hoped to achieve. A monograph of this nature is unusual in the contemporary world of the social sciences insofar as it combines a considerable element of in-depth historical research with a widely-reaching commentary and analysis of the changing nature of government policies and intentions, and their effects upon an essential social service such as imprisonment and the administration of criminal justice. It should also provide a useful reference source for a wide range of professional and student interests in social policy issues, criminology, legal studies, philosophy and political science.

References Ministry of Justice. (2016) Story of the Prison Population 1993–2016 , London: Ministry of Justice. Prison Reform Trust. (2019) ‘Safety in Prisons’, in Prison: The Facts, London: Prison Reform Trust, (Summer).

2 Change and Uncertainty in Penal Strategies 1945–1991

Strategic Post-war Penal Policies—The Rehabilitative Ideal As peace returned after the hostilities ended in 1945, the average daily prison population of England and Wales stood at slightly less than 20,000, the majority of whom were held in inner-city and town prisons of Victorian origin. Regimes in these prisons were Spartan, discipline was strict, the diet simple, prisoner employments were menial, and privileges were few. The prevailing punishment philosophy was a continuation of the pre-war emphasis on retribution and reform, and the deterrent effect of imprisonment remained relatively unstated in an almost taken-for-granted manner. In some sense of conformity with the national spirit of post-war ‘welfarism’,1 the emphasis within penology during the 1950s and 1960s 1

The term ‘welfarism’ as used here denotes the spirit of optimistic benevolence within postWar governments to improve the conditions in which the British population recovered from the privations of a wartime economy. It included emphasis on the provision of an improved housing stock, the creation of a National Health Service, the creation of a contributory National Insurance Scheme to create funds to provide against unemployment, and the like. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_2

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changed towards the replacement of the concept of reform with that of ‘rehabilitation’. It was predicated in the belief that criminality could be ‘cured’ through a quasi-medical model of therapeutic intervention and training, enabling offenders to adopt law-abiding lifestyles within their communities upon release from custody through psychological ‘treatment’ and enhanced literacy, numeracy and employability. Though this initiative implied the need for sentencing indeterminacy to make release contingent upon ‘demonstrated progress’, it created a new tier of professional practitioners within prisons, and a significantly increased extent of bureaucratic discretion among those subsequently made responsible for decision-making in relation to release authorisation.2 The ‘Rehabilitative Ideal’3 as it became known became the guiding ‘mantra’ of what weresubsequently termed the adult ‘Training Prisons’ in England and Wales from the mid-1950s onwards. These prisons operated in tandem with the Borstal Training system already established for juvenile and young adult offenders (aged over fifteen and under twentyone years) in the Prevention of Crime Act 1908. It was enshrined in the Prisons Act 1952 and Prison Rule 1 in the words: ‘The purpose of the treatment and training of convicted prisoners shall be such as to enable them to lead useful and law-abiding lives in prison and upon release’. The ‘ideal’ was, however, not without its detractors within a few years of its implementation. In the first place, it became perceived as a coercive means of control within prisons due to the requirement that prisoners had to demonstrate ‘progress within the regime’ to be deemed ‘successful’ in relation to the criteria for early release on parole licence after one third (or a minimum of twelve months) of their sentence had been served, and thus applied only to those sentenced to three or more years imprisonment. Secondly, the criteria for ‘success’ were never clearly specified 2 In fact, it led to the creation of the Parole system of release in the Criminal Justice Act 1967, the National Parole Board, a legislative framework of Local Review Committees (LRCs) in prisons, and the Home Office Parole Unit to which locally approved cases were forwarded by LRCs for vetting before consideration by the National Parole Board. For further reading see: D.P. Walsh, ‘Parole’, in D.P. Walsh and A. Poole (Eds.), A Dictionary of Criminology, London: Routledge & Kegan Paul, 1983, pp. 154–155; and C.P. Nuttall et al., Parole in England and Wales, Home Office Research Study no. 38, London: Home Office, 1977. 3 Also known as the ‘Treatment and Training Model’ of the penology of the post-War era in England and Wales.

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and were thus left to the discretionary interpretation of prison officials (normally the then Assistant Governors) responsible for reviewing prisoner progress and compiling parole reports in conjunction with prison staff of various disciplines (Prison Officers, Seconded Probation Officers, Psychologists, Medical Officers, Chaplains, Educational Staff and Employing Grades, etc.). Third, actual release authorisation was ultimately vested in the discretion of Local Review Committees (LRCs) of prisons and their recommendations to the parole authorities in London based on their assessment of the reports, of the written representation submitted by the individual prisoner (with assistance if required), and a brief interview with an LRC member. In short, the parole system created a vast and time-consuming bureaucracy requiring months of preparation, production and subsequent waiting time for eventual responses. There were further aspects of criticism of the ‘rehabilitative ideal’ which contributed to its eventual demise for methodological and ethical reasons. Much of the statistical data used in explanation and assessment of crime commission and causation were subjectively assembled rather than scientifically verifiable, were value-laden, and unreliable as a basis for policy deliberation and legislation.4 This led to the criticism that the practices based upon such assessment criteria were coercive or manipulative in nature, and implemented more for the purposes of control in prisons rather than for the reasonable treatment of offenders. In the USA the model was delivered a coup de grace by Robert Martinson in a widely publicised article in The Public Interest journal in 1974 in advance of the publication of a much more comprehensive critique of the ideal in the following year (Lipton et al. 1975).5 The latter concluded, in a survey of more than two hundred studies, that no particular form of treatment programme was any more effective than any other in reducing reoffending. This analysis became widely, if somewhat pejoratively known

4 Here see, for instance, the analysis of Taylor et al. in The New Criminology, London: Routledge & Kegan Paul, 1973, helpfully summarised in P. Wiles (Ed.), The Sociology of Crime and Deviance in Britain, Volume 2, The New Criminologies, London: Martin Robertson, 1976, pp. 124–144. 5 See: R. Martinson, ‘Questions and Answers About Prison Reform’, The Public Interest, 1974 (Spring): 22–54; and D. Lipton, Martinson, R. and Wilks, J., The Effectiveness of Treatment Evaluation Studies, New York: Praeger Publications, 1975.

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as the ‘nothing works’ hypothesis, but in combination with the criticisms mentioned previously, it was sufficient to destroy confidence in the rehabilitative ideal.

‘Humane Containment’ In fact, the decline of the rehabilitative ethic was assured for entirely other reasons in England and Wales since, as the 1970s began, the prison population was rising rapidly and post-sentence recidivism was also increasing in frequency. This led to claims in the mass media and in academic circles that prisons, as then operated, were an inefficient means of crime reduction. A government White Paper ‘People in Prison’ published in 1969 (Home Office 1969) had introduced the concept of ‘humane containment’ as a primary purpose of imprisonment, and as a means of reducing the use of short-term sentences to limit overcrowding and create better conditions in prisons. However, the document was curiously ambivalent towards, and apparently accepting of the inevitability of a rising prison population. Whatever ‘humane containment’ was supposed to signify in terms of penal practice, the purpose(s) of imprisonment and of the Prison Service itself remained ill-defined and were destined to remain so inthe foreseeable future. It was also a period in which the concept of ‘Prisoners’ Rights’ was emerging as a seriously debated matter in relation to prison conditions, procedures for the redress of prisoner complaints, and access to legal advice and support. There is, with hindsight, no doubt that the dominant issue was that of deteriorating prison conditions over which individual prisons had relatively limited control, but which presaged a turbulent period of unrest ahead unless the situation could somehow be urgently addressed. Abolition of the Death Penalty for murder in the UK, initially on a trial basis from 1965 and finally in 1969 by the (then) Labour Government had not significantly increased the average daily prison population which, by 1970, had risen to around 26,000 and was set on an upward path. The term ‘humane containment’, without any more precise elaboration, was too opaque to withstand any rigorous philosophical or

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operational scrutiny beyond the apparent suggestion that prisons should accommodate however many persons were sentenced to custody by the courts and in as decent and reasonable conditions as could be provided within the resources available. Even this minimal requirement was almost impossible to meet, given that the majority of the 111 prisons then in use were antiquated Victorian structures or converted former military camps incapable of holding an expanding penal population without crowded conditions, and with limited security provision. Humane containment was hardly a strategy for any form of penal purpose other than a warehousing process for increasing numbers of disaffected offenders in conditions that could have been predicted to lead to unrest in many prisons during the early years of the 1970s. To make matters worse, the escapes of two high profile prisoners (of Ronald Biggs the Great Train Robber and three accomplices from Wandsworth Prison in London in July 1965, and of the Spy George Blake from Wormwood Scrubs Prison, also in London, in October 1967) had indicated evident deficiencies in the security and control procedures then in place in these and a number of other establishments as the subsequent Inquiry by Earl Mountbatten made clear.6 The Report led to a number of hastily contrived measures in prisons to tighten security procedures, and classify prisoners in terms of their assessed risk of and potential for escape, all of which made prison regimes more restrictive and oppressive7 rather than purposeful andconstructive.

6 Home Office, Report of the Inquiry into Prison Escapes and Security by Admiral of the Fleet, the Earl Mountbatten of Burma, Cmnd 3175, London: HMSO, 1966. 7 In particular in the sense of a widened use of CCTV camera coverage within and around the perimeters of prisons to provide real-time surveillance of prisoner movement monitored from central Control Rooms. The introduction of cameras within prisoner accommodation houseblocks in particular was resented by the occupants, while also enabling enhanced protection for staff dealing with prisoners on landings and in corridors used for movement when inmates were out of cells or dormitories.

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Emergence of the ‘Justice Model’ of Corrections The search continued in Britain and the USA in particular during the early 1970s for a strategic solution to the problems arising from criticisms of, and the subsequent demise of the rehabilitative ethic, increasing rates of recorded crime, and the continuing escalation of prison populations which were common to both countries. It transpired that a potential means might be found of averting the impending penal crisis in England and Wales through a coalescence of agendas expressed by an apparently disparate group of reformist bodies described by Barbara Hudson (1987) in the following analysis: The justice model was most self-consciously formulated by the liberal lawyers anxious to restore due process to the heart of the justice system, and in many ways it is ‘their’ model. It was, however, eagerly adopted by many radicals among both criminal justice practitioners and among academics, partly because it seemed to offer the prospect of progress in correcting the abuses of rehabilitationism, and partly because, having not pursued their criticism of prison regimes and procedures through to an agenda for abolition of imprisonment, there was a vacuum left in the area of radical-left reform proposals, a vacuum which was irresistibly filled by the justice model. (Clarke 1978) Indeed, the success of the justice model is due in large measure to the way in which it appears to offer all things to all people. To the liberal lawyers, it promises a restoration of the legitimacy and respect accorded the legal system by reducing the perceived irrationality and unfairness of a system which facilitates – indeed logically depends upon – wide discretion andconsequent disparity in sentencing, with like offences receiving very unlike sentences (e.g. Frankel 1973; Fogel 1975; Wilkins 1980); to the right-wing, law-and-order lobby it appears to guarantee ‘swift and sure punishment’, ending leniency and the softly, softly approach of giving criminals over into the care of social workers rather than into the control of the prisons system (e.g. Wilson 1977; Morgan 1978); to radical academics, social workers and campaigners against the excessive use of imprisonment, considering the offence means that a huge volume

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of petty, routine offending would be punished by conditional discharges, fines, etc., and that imprisonment would become reserved for only the most serious, most socially or physically dangerous of criminals, and that people would cease to be imprisoned because of judicial prejudice against the unemployed, members of ethnic minority groups, the young and already socially disadvantaged. (e.g. American Friends Service Committee 1972; Schur 1973; Morris 1978; Morris et al. 1980) (Ibid.: 37–38)

Expressed in such terms, it is possible to summarise the essential elements or premises of the justice model as: • Punishment in proportion to the gravity of offences; • Determinacy in sentencing and abandonment of indeterminate punishment; • Removal of judicial and executive discretion; • Elimination of sentencing disparity; and, • Protection of rights through restoration of due process. In many respects, the justice model thus elaborated was fully in accord with the recommendations of the Report of the Committee for the Study of Incarceration in its publication Doing Justice: The Choice of Punishments (von Hirsch 1976) published in the USA in the year before Hudson’s analysis cited above. Whatever the attractions the justice model may have held for its proponents and for those of a moderate disposition towards fairer justice and lesser dependence upon imprisonment as a sanction in England and Wales in the 1970s, it was evidently too radical a prescription for the then left-of-centre Labour administration to accept with enthusiasm in the prevailing political climate for a number of reasons. First, and perhaps foremost, to accept it in terms of reforming legislation would have brought the government into direct conflict with the judiciary determined to preserve its independence and discretionary freedom in sentencing criminal offences. Second, the period was one in which rates of recorded crime were rising in tandem with widely increasing affluence in a society considerably averse to crimes such as burglary, car theft, robbery and criminal damage. Third, the mid- to late 1970s

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also witnessed increasing unrest and disorder within the prison system, focused upon by the mass media, and engendering scant public sympathy for either prisoners or prison conditions. However, as Adams (1992: 126–127) pointed out, ‘the public order crisis in prisons was part of a wider crisis. Since the late 1960s, problems of public order in various parts of Britain became increasingly apparent. The Home Office’s reticence about reporting prison rioting from the early 1950s to the mid-1970s was consistent with the denial that there was any significance in the incidents. It went hand in hand with a reluctance to submit to the rigours of public investigation’. Thus, the emergence of the justice model has also to be viewed as an attempt to bring greater strategic accountability into the criminal justice arena, and also overcome the cloak of secrecy within which it had traditionally operated. The decline and eventual demise of the justice model during the early 1980s, in spite of its potential merits in promoting a more humane and considered approach to criminal punishment, was ultimately assured by its potential to be co-opted for purposes far removed from those of its conception. It also fell prey to a seismic shift in penal policy direction with the election of a Conservative government led by Margaret Thatcher in 1979 which was to maintain it in parliamentary power until 1997. Continuing unrest within the prisons reflected the general situation in many urban centres of England and Wales as the 1980s began, and in which in 1981-2, rioting took place in response to the government’s policy of fiscal retrenchment and limitations on public spending. Rates of unemployment had risen considerably, and overall manufacturing production declined by more than 15 per cent (Marwick 2003: 228– 229).8 Though it may be claimed that this widespread increase in lawless behaviour outside prisons had causes attributable to the economic situation, increasing unemployment, and inter-racial tensions in inner-city 8 In April 1981 a spate of urban rioting broke out at Brixton and Finsbury Park in London, and subsequently, in July of that year in Southall in West London and Toxteth in Liverpool. These were followed in later weeks by similar incidents in Brixton in London, Moss Side in Manchester, Bristol and Leicester (Ibid.: 231–232). In the prisons over the same period, there were serious disturbances and roof-climbing incidents at Wormwood Scrubs Prison in London, Risley Remand Centre in Lancashire, and twenty-two other prison establishments throughout England and Wales (Adams 1992, op. cit.: 159).

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areas, the situation within the prisons reflected prisoner dissatisfaction with overcrowded conditions, poor regime provision, tensions between inmate ethnic groupings, and a marked deterioration in prisoner: staff industrial relations. In 1978, and in response to the recurring incidence of national industrial action by prison officers over staffing and working practices, the (then) Labour government had set up a major Committee of Inquiry into the UK Prison Services chaired by Mr. Justice May and with nine members to ‘Inquire into the state of the Prison Services in the United Kingdom’, and specifically: • the size and nature of the prison population, and the capacity of the prison services to accommodate it; • the responsibility of the prison services for the security, control and treatment of prisoners; • the need to recruit and retain sufficient and suitable staff for the prison services; • the need to secure the efficient use of manpower and financial resources in the prison services (Home Office 1979: iii). We shall return to a more comprehensive discussion of the May Report in Chapter 6. Ultimately, by the mid-1980s the justice model had been rejected by government and the judiciary, and almost abandoned by penal reform groups, many academics and criminal justice practitioners. The increase in lawlessness and increasing crime had alienated the general public from any sympathetic understanding of the state of the prisons or of prisoner grievances, and the ‘law and order’ lobby for harsher punishment of offenders was gifted a raison d’être for its demands. As Cullen and Gilbert (1982) had asserted: Justice model proponents have strongly advocated short sentences and the proliferation of alternatives to imprisonment, whereas conservatives have been convinced that longer prison terms are integral to the reduction of the crime problem. In the end, one reality has thus become clear: the ‘bare

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bones’ of determinacy and desert are as easily adaptable to a programme of ‘getting tough on crime’ as to one of ‘doing justice.’ (Ibid.: 200)

And so it proved to be the case. As the 1980s progressed, the state of industrial relations within the Prison Service deteriorated significantly as the militancy of the Prison Officer’s Association (POA) increased their alienation from the higher echelons of management in the Home Office. Working to rule and consequent disruption to prison regimes became widespread, and many prisons became almost ungovernable as a result. Relations between prisoners and prison staff, normally maintained at levels of mutual tolerance, became strained and fragile. The scene was set for what was to follow as the 1980s drew to a close.

Strategic Paralysis in the Late 1980s In the Spring of 1986, widespread disturbances broke out in 46 prisons in England and Wales described in the Hennessey Report 1987 into them as ‘the worst that that the English prison system had ever known’ (HMCIP 2019: 101). Twenty-two prisons experienced major riots starting at Gloucester, 45 prisoners escaped, and the prison at Northeye in Sussex was completely destroyed, never to re-open. The Report was heavily suppressed by the Home Office in what wasdescribed by the Prison Reform Trust as ‘blatent (but highly effective) news manipulation of its findings’ through severely limited press coverage (Prison Reform Trust 1990: 1), and, remarkably, it was never debated in Parliament (Adams 1992, op. cit.: 162). In 1986, in an attempt by the Home Office and the Prison Service management to defuse the industrial relations impasse, a report had been commissioned to examine its causes and effects upon the functioning of prisons (Home Office 1986). One of the main conclusions9 was that prison officers were working excessive amounts of overtime which could 9

This recommendation related to the work of the Committee of Inquiry into the United Kingdom Prison Services set up in 1978 and its Report within which, in a lengthy Chapter 10 (pp. 233– 275) of what became known as the May Report 1979, a similar conclusion and recommendation had been made but not implemented.

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be withdrawn without prior notice being given, and that prisons could be run more safely and efficiently if prison officers worked on average eight hours less each week, but with revised systems of attendance (shift patterns) and working practices (Cavadino and Dignan 1997: 15). The POA strongly opposed any such solution on the basis that overtime working enhanced the earnings of prison officers which, at basic weekly levels, the POA regarded as entirely inadequate. The response of the Prison Service Management Board was to impose an initiative known as ‘Fresh Start’ in 1987 under which overtime working would be discontinued, and the salaries of prison officers would be based upon a working week of 39 hours with enhanced basic rates of remuneration. This did little to mollify the POA who claimed that it would lead to understaffing in prisons because insufficient numbers of new prison officers were to be recruited. Predictably, the initiative was bound to founder because it was not supplemented by any legislation to reduce the size of the prison population,10 and also because in 1985 the government had introduced a new budgetary system for prisons which effectively imposed cash limits upon spending on staff salaries and expenses. The ‘stand-off ’ between the POA and the management of the Prison Service over staffing issues was thus set to continue unresolved. The ‘rioting season’ of 1988 witnessed the spread of disorder into the lower security (Category C) sector of the training prisons estate with major incidents at Haverigg in Cumbria and Lindholme in Yorkshire. Though no serious injuries to prisoners or prison staff ensued, the result was a loss of 239 prison places and considerable damage to the former Royal Air Force establishment. This was followed in 1989 by another major disturbance involving prisoners on remand at Risley Remand Centre near Warrington in Cheshire with a further loss of 156 prison places. Though the Risley disturbance was subjected to an internal inquiry by Ian Dunbar, the Regional Director of the South West Region of the Prison Service, his Report was published some time later, but in summary format only. Whether out of complacency, or out of a resigned acceptance on the behalf of the Prison Service Headquarters and Ministers that riotous behaviour in prisons had now become ‘business as usual’, 10

Which, by the mid-1980s, has risen to over 45,000 (cf. Fig. 1.1).

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with hindsight it seems incredible that no substantive strategic action was demanded of the government out of public concern to resolve the situation within the prisons. One of the reasons why some form of ‘strategic paralysis’ seemed to have gripped the Prison Service during the 1980s was undoubtedly the appalling state of its industrial relations which had deteriorated markedly since the mid-1970s. The aggressively militant behaviour of the POA subsequent to its outright rejection of the May Report 1979 findings had intensified considerably at both the national and locallevels of the Service. To make matters worse, during the 1980s the POA National Executive Committee (NEC) had delegated its powers to initiate disputes procedures to local POA Branch Committees in the form of ‘Failure to Agree’ notifications to prison governors—invoking ‘status quo’ restrictions on moves designed to revise shift systems or working procedures—a delegation which increased the incidence of poor relationships between prison staff and management, and frequently prevented initiatives for improvement of regimes in prisons from being implemented.11 A second reason was the inescapable fact that government inability (other than through legislation) to place limitations on the number of offenders sentenced to custody by the judiciary led inevitably to loss of control over the size of the prison population, and to overcrowding of prisonaccommodation. The latter led in turn to the overstretching of regime resources, and to the consequent confinement of prisoners to cells for lengthy periods which resulted in discontent and reactions of disorder. Electorally, lesser resort to imprisonment was perceived by many MPs, the media and the wider public as a ‘soft on crime’ option which even the justice model, if it had been fully implemented, would not have resolved. Finally, abandonment of the justice model had effectively created a ‘penological vacuum’ which the notions of ‘humane containment’ and ‘positive custody’ failed to fill either philosophically oroperationally within either the prisons or the wider criminal justice process. This 11 The ‘Failure to Agree’ procedure negotiated at the national level between the POA NEC and the Prison Service HQ within the Home Office bound bothsides within prisons to undertake a period of negotiation over disputed issues which would, if agreement was not forthcoming, be escalated to the national level for resolution after a specified period had elapsed.

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fact presented the Thatcher Conservative government of the 1980s and onwards with strictly limited options: either more prisons were required, or less prisoners within the existing ones if continuous outbreaks of disorder were to be avoided. As will be seen subsequently, the perceived need of the government for financial restraint and retrenchment within the public sector services in the 1990s made the former option extremely unattractive, and an ideological confrontation with the judiciary over sentencing reform even less so as a means of reducing the prison population. As a result, the criminal justice process was in a cul-de-sac as the 1990s began, and the prison system within it was in an operational wilderness, unable or incapable of resolving the dilemmas of its existence.

Strangeways, April 1990 and the Aftermath On the bright Spring morning of Sunday 1st April 1990, the large and imposing Victorian prison on the outskirts of the city centre of Manchester imploded with major disorder in the Chapel Service which quickly spread onto the Wings of the establishment with prisoners gaining access to the roofs and commencing to demolish them, hurling slates and coping stones onto the courtyards and staff below. Though many prisoners were quickly evacuated from the building into an adjacent workshops complex, by mid-afternoon some 200 were estimated to be on the roofs or rampaging around the upper landings of the Wings demolishing hand rails and safety netting which were thrown into the central core of the prison, along with bed frames, cell furniture, and the scaffolding that had been erected by prison facilities staff in order to enable renovating repairs to be made to the Rotunda above the centre of the main prison. By evening, the central core of the prison had been made impassable to staff by the tangled mass of wreckage that been thrown into it from the upper floors of the Wings.12

12

On the same day, the author was contacted by a Staff Officer from the Operations Centre at Prison Service HQ, and asked to travel to Manchester to assemble and lead a team of trained negotiators to persuade rioting prisoners within the prison to end their destructive activities and surrender to lawful authority. He remained at the prison until the 25th day of the siege

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Amazingly, there was no loss of life or major injury to staff or prisoners during the twenty-five-day siege at Manchester, although one prison officer suffered a serious heart condition from which he recovered and subsequently retired.13 What was truly remarkable, however, was the extent of havoc and destructive damage that adrenalin-fuelled prisoners can wreak upon a substantial structure such as the Strangeways Prison within a few hours of frenzied rampaging activity. As a consequence, it was some days before prison staff could gain access to the inner core of the prison, and even having done so, take back control of the upper landings above which prisoners on the roofs could still move around with relative impunity. The siege was into the fourth day of its fourth week of duration when it was eventually resolved with the negotiated surrender of the five prisoners remaining in occupation of the roof space above the chapel where it had started. By this time, the entire structure of the prison had been made uninhabitable, and some parts of it had been damaged by fires and flooded with water in an attempt to bring these under control. It was clearly evident that if it was ever to be taken back into use, the entire residential complex would have to be largely re-built. Almost one thousand prison places had been lost, and the majority of the staff had to be temporarily re-deployed to other establishments until the future of the prison could be determined. The Strangways Riot sparked off similar disturbances at Glen Parva, Dartmoor, Cardiff, Bristol and Pucklechurch prisons during April 1990. In the latter instance, a Remand Centre, of the 103 male prisoners held there 35 were injured in the re-taking of the establishment by riot control units, as were also 47 staff. The subsequent Report into all of these incidents was compiled by Lord Justice Woolf assisted by Judge Stephen Tumim, then HM Chief Inspector of Prisons, and published in February 1991 (Woolf and Tumim, Home Office 1991). In default of an evident strategy within the Home Office and Prison Service to improve on which the final five prisoners were persuaded to surrender (see Cornwell and Boag 1991: 104–125). 13 In a subsequent assessment (Prison Reform Trust, Strangeways 25 Years On, 2015: 2), it was claimed that the riot left two men dead and 194 injured, but such a claim was not made in the immediate aftermath of the riot, or in the Woolf Report into the disturbance.

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prison conditions and regimes, eliminate overcrowding and deal effectively with reasonable prisoner complaints, the Report focused on twelve main recommendations which may be summarised as follows: 1. Closer cooperation between different parts of the criminal justice process through a national forum and local committees; 2. More visible day-to-day leadership of the Prison Service by the Director General through a published contract with Ministers; 3. Increased delegation of responsibilities to governors of prisons; 4. An enhanced role for prison officers; 5. Prisoner contracts with expectations and responsibilities for all prisoners; 6. A new Prison Rule forbidding prisons to exceed their levels of Certified Normal Accommodation (CNA); 7. A public commitment from Ministers to provide access to sanitation for all prisoners by 1996; 8. A national, auditable, and eventually binding system of Accredited Standards in all prisons; 9. For prisoners to be located in community prisons near their homes wherever possible, and have more visits and home leave in order to improve their links with families and communities; 10. Establishments to be divided into smaller, more manageable and secure units; 11. A separate Statement of Purpose, conditions and lesser security categorisation for remand prisoners; 12. Improved judicial procedures in prisons, including relieving Boards of Visitors of their adjudicatory responsibilities, and introduction of a grievance procedure and disciplinary proceedings to be dealt with by the governor and an independent Complaints Adjudicator (Ibid.: 17–18; Adams 1992, op. cit.: 166). Although the government broadly welcomed and endorsed the Woolf Report and its recommendations, the newly appointed Home Secretary Kenneth Baker was placed in the difficult position of deciding which (if any) of them could be implemented in the short term. The government had previously committed to end ‘slopping out’ by prisoners by the end

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of 1997, and this pledge was brought forward to 1994. The remainder of the Woolf reforms would evidently require longer-term resolution, the impact of which would have been considerable in fiscal and legislative terms, and would not speedily resolve the more pressing problem of overcrowding which was a root cause of many of the wider spread disturbances. Implementing the ‘slopping out’ pledge within a three-year time scale had serious implications for the government in addition to the considerable cost involved. The widely preferred process for providing integral sanitation to cell blocks in the many older prisons involved taking one middle cell in three out of use and converting it into two lavatory and wash basin cubicles for the adjoining cells. However, the prison population was increasing rapidly during 1991 (from some 45,000 in March to over 47,000 in September of that year). To make matters worse, by the Autumn of the year more than 1,800 prisoners were being held in police cells at significant public expense because the programme to construct additional cellular accommodation units within existing prisons could not compete with the rate of population increase. The conversion process was, therefore, widely halted in the Autumn of 1991 for an indefinite period (Guardian, 27 September 1991). It had taken the almost catastrophic riot at Strangeways and others elsewhere in April 1990 to mobilise the government and the Prison Service into strategic recovery planning mode to prevent the crisis in the prisons from imploding completely. Meanwhile, on 21 August 1991 a major disturbance at HMP Lindholme near Doncaster (the fifth at the converted former RAF Station in three years) required the prison to be surrounded by police in riot gear to prevent a concerted breakout of prisoners until Prison Service control and restraint teams could be deployed to restore control. This disorder spread to the nearby and newly built Moorland Remand Prison on 25th August, and subsequently on 2nd September to Everthorpe Prison in Humberside—a former Young Offender Institution—which was being emptied for conversion into a Category C adult training establishment. As if these events were not sufficiently serious in nature and extent to provoke serious governmental consideration of the violence-prone state of the penal system of England and Wales during the post-War decades

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of the twentieth century, it has to be noted that this lawlessness was also mirrored within many of the larger urban communities beyond the perimeters of the prisons themselves. In mid-September 1991, rioting broke out in Cardiff, Oxford, Tyneside and Handsworth in Birmingham in the down-town areas from which many prisoners tended to be drawn (Adams 1992, op. cit.: 168). Though these disorders were not of the scale previously seen in 1981, they were seriously disruptive enough of community life to cause widespread public concern over the maintenance of law and order throughout the country.

Conclusions from Chapter 2 A number of broad themes have emerged from the discussion within this chapter, some of which will recur in subsequent chapters. The first of these themes concerns the lack of durability and consistency of penal purpose within the strategic penal policies selected by successive governments in England and Wales during the post-War period. From the relative simplicity of the immediate post-war penology grounded in retribution and reform as the dominant principles of criminal punishment, through the ‘rehabilitative ethic’ of treatment and training during the 1950s and 1960s, to the ‘just (or commensurate) deserts’ model of the 1970s—imported largely from the USA—which gave birth to the ‘justice model’ of the late 1970s and early 1980s. When the latter failed, a penological vacuum emerged within which crime control rather than crime reduction was adopted as the dominant strategic purpose in response to rising crime rates; confidence in community sanctions waned; and custodial sentencing increased both in frequency and duration as a means of criminal incapacitation and deterrence. This theme will persist in Chapter 3 which follows. The second theme concerning the critical state of the prison system in England and Wales is the dominant focus of this work. However, that system is but part of a wider crisis within the entire criminal justice process which defies description as ‘systematic’ in present circumstances. The frequent recurrence of disorder within the prisons since the 1960s in particular, and recorded in this chapter, in many respects reflects a

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wider lawlessness in the urban areas of towns and cities in many parts of the country in which dysfunctional social conditions and lesser eligibility encourage criminality but do not excuse it. These are the areas from which the majority of prisoners originate, and to which they will inevitably return having served custodial sentences. Prisons fail to reduce crime because of the circumstances in which they are constrained to operate, and not necessarily as a result of managerial negligence or ineptitude. This situation will be seen to pervade subsequent chapters and requires thematic attention. Thirdly, the strategic management of prisons at the national level cannot escape critical examination as this chapter has shown. As will be seen later, however, the entire criminal justice process is vulnerable to political manipulation by governments more focused on electoral credibility and survival than upon the delivery of effective justice. National fiscal resources are finite and have to be spread to meet the competing social priorities of many Departments of State, and therefore cannot be squandered on wasteful, hastily researched or ineffective practices. As this work unfolds, numerous examples of such behaviour will become evident, foremost among which are the legacies of the adoption of ‘managerialism’ and ‘privatisation’ in public sector policy-making and management which will be discussed in Chapter 3. The fourth theme arising within this chapter has been the impact upon the operational performance of the Prison Service of a historically degenerative and confrontational climate of industrial relationsdating back to the 1960s, involving the Prison Officers’ Association (POA) and the management structure of the Service at every level. There is little doubt that there were faults on both sides of this relationship which became one of mutual distrust and even outright confrontation as conditions within prisons deteriorated markedly from the 1970s onwards.14 Though, as will become evident in the next chapter, efforts were made in the 1990s to resolve the long-standing impasse, the POA has retained a significant capacity to restrict or obstruct improvements in prison regimes, and protect the working conditions of its membership to the 14

Here, see the account of Derek Lewis, Director General of the Prison Service from 1992– 1995, in Hidden Agendas: Politics, Law and Disorder, London: Hamish Hamilton, 1997, pp. 130–142 and passim.

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detriment of reforming measures within the prisons of England and Wales to the present day. The fifth, and possibly the most contentious theme involved the relationship between the Judicial and the Executive functions of government in England and Wales at the strategic level of criminal justice administration and policy deliberation. The traditionally inherited independence of the judiciary from interference by the executive in relation to sentencing practices and other jurisprudential matters is widely accepted as dating back to the Act of Settlement 1701 and the development of the concept of the Separation of Powers.15 However admirable the concept may be theoretically, in a contemporary sense it confers an extent of discretion in sentencing decision-making upon the judiciary that can lead to the over-use of imprisonment in preference to non-custodial alternatives in punishment of less serious offences, and contrary to the doctrine of ultima ratio or last resort. The evidence within this chapter indicates clearly that overcrowding of prisons became a widespread practice from the 1970s and onwards, and continues to be the case. Overcrowding encourages violence and disorder in prisons, loss of control by prison staff, and threatens the security of prison establishments. The main cause of overcrowding is the over-use of custodial sentencing beyond the capacity of prisons to hold those thus sentenced in conditions of decency, safety and purposeful regimes. As has been shown in this chapter and will also be seen in the further chapters of this work, successive governments failed to place limitations on the occupation of prisons or the ability of the courts to impose imprisonment where other appropriate measures could have been sufficiently punitive in relation to the seriousness of offences committed. In the chapter that follows, the events that occurred within the penal process and the strategic policies adopted by successive governments in relation to prisons in England and Wales in the 1990s and beyond become the focus of discussion. These will be analysed in relation to two 15

It was originally conceived to protect the judiciary from the monarchical interference and dismissal exercised by the Stuart dynasty until the Glorious Revolution of 1688 which brought William III to the English throne. The process of separation was reinforced in a modern context in the Constitutional Reform Act 2005 and the removal of the Law Lords from the House of Lords to form the Supreme Court of Justice.

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further and important themes that emerged and had considerable impact upon the criminal justice process into the present millennium. These were the concepts of ‘managerialism’ and ‘privatisation’ respectively, apparently unrelated upon superficial examination, but with operational implications that became inseparably intertwined within the criminal justice process.

References Adams, R. (1992) Prison Riots in Britain and the USA, Basingstoke, Hampshire: The Macmillan Press Ltd. American Friends Service Committee. (1972) Struggle for Justice, New York: Hill and Wang. Cavadino, M. and Dignan, J. (1997) The Penal System: An Introduction, [2nd Edition], London: Sage. Clarke, D. (1978) ‘Marxism, Justice and the Justice Model’, Contemporary Crises, vol. 2: 27-62. Cornwell, D.J. and Boag, D. (1991) ‘The Multi-Perpetrator Dimension in Prison Siege Negotiations: Psycho- Strategic Considerations’, in Proceedings of the Prison Service Psychology Conference 1991, London: HM Prison Service Publications, pp. 104–125. Cullen, F. and Gilbert, K. (1982) Reaffirming Rehabilitation, Cincinnati: Anderson. Fogel, D. (1975) We Are the Living Proof: The Justice Model of Corrections, Cincinnati: Anderson. Frankel, M.E. (1973) Criminal Sentences, New York: Hill and Wang. HM Chief Inspector of Prisons. (2019) Annual Report 2018–19, London: HM Stationery Office. Home Office. (1969) People in Prison, [White Paper], Cmnd.4214, London: HMSO. Home Office. (1986) HM Prison Service, London: Home Office. Hudson, B. (1987) Justice Through Punishment, Basingstoke: Macmillan Education. Lipton, D., Martinson, R. and Wilks, J. (1975) The Effectiveness of Treatment Evaluation Studies, New York: Praeger Publications. Marwick, A. (2003) British Society Since 1945, London: Penguin Books.

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Morgan, P. (1978) Delinquent Fantasies, London: Temple Smith. Morris, A. (1978) Juvenile Justice? London: Heinemann. Morris, A., Giller, H., Szwed, E. and Geach, H. (1980) Justice for Children, London: Palgrave Macmillan. Prison Reform Trust. (1990) Submission to Phase 2 of the Woolf Inquiry into Prison Disturbances, London: Prison Reform Trust. Prison Reform Trust. (2015) Strangeways 25 Years On, London: Prison Reform Trust. Schur, E. (1973) Radical Nonintervention: Rethinking the Delinquency Problem, Englewood Cliffs, NJ: Prentice- Hall. Von Hirsch, A. (1976) Doing Justice: the Choice of Punishments, [Report of the Committee for the Study of Incarceration], New York: Hill and Wang. Wilkins, L. (1980) ‘Sentencing Guidelines to Reduce Disparity’, Criminal Law Review, (April): 201–204. Wilson, J. (1977) Thinking About Crime, New York: Vintage Books. Woolf, H. (LJ) and Tumim, S. (J) (1991) Prison Disturbances April 1990, Cm.1456, London: HMSO.

3 Prisons, Managerialism and Privatisation 1991–1997

The Early 1990s: Prisons at the Crossroads In the aftermath of the widespread disorders within and beyond the prisons of England and Wales during 1990 described at the close of Chapter 2, the Prison Service was in considerable disarray. In addition to the ‘crisis of numbers’ caused by overcrowding, and in default of a clearly articulated penal strategy to underpin its operational existence, the Service was facing a further ‘crisis of legitimacy’ that, in the wake of the Woolf Report, called into question the functional effectiveness of the entire criminal justice process. Here, it will be noted that in November 1990 Prime Minister Margaret Thatcher was replaced by John Major as leader of the Conservative Party, and had appointed Kenneth Baker as Home Secretarywithin his cabinet to oversee the aftermath of the Strangeways riot, its associated incidents within the Prison Service, and the outcomes of the Inquiry into them conducted by Lord Justice Woolf and Judge Stephen Tumim published in their eventual Report in April 1991. While there was considerable wisdom and truth in Woolf ’s assessment of the causal aspects of the disorders in April 1990 within © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_3

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the prisons estate, he deliberately refrained from comment in relation to the sentencing behaviour of the courts in the overuse of prison custody during the 1980s, and the relative inability of the Prison Service to expand its capacity significantly due largely to the budgetary constraintsimposed by the government on the public sector during the later years of that decade.1 Following upon the publication of the Woolf Report in February 1991 (Woolf and Tumim 1991, op cit.), the government in September 1991 published a White Paper Custody, Care and Justice (Home Office 1991) which drew heavily on the recommendations within the Woolf Report, and purported to provide ‘a coherent and consistent strategy for the Prison Service’ in the years ahead (Ibid.: 5). However, by the time the White Paper was published, the extensive damage caused to the Prison Service during the immediately preceding years of the 1980s was almost irreparable due to the laissez-faire approach of the government and the judiciary towards agreeing and implementing sentencing reformmeasures, and enforcing them. As Cavadino and Dignan (1997, op. cit.) subsequently described the situation: The result of this ‘softly softly’ approach was that sentencers were effectively allowed a free rein in developing their own sentencing practice, leaving official policy-makers to respond and adapt to an agenda over which they had but limited control. The policy vacuum which was allowed to develop in this way was inadequately filled by leaving it up to the courts to formulate their own guiding principles. This was partly because … the Court of Appeal showed no inclination to formulate a coherent set of sentencing aims for the guidance of sentencers, and partly because the self-regulatory mechanisms on which it sought to rely in pursuit of its more limited policy objectives were themselves seriously defective. As a result, the discretionary powers of sentencers remained largely unconstrained and out of control while the penal crisis intensified. (Ibid.: 99–100)

1 Here, it may be recalled from Fig. 1.1 that in mid-1978 at the time of the May Report, the average daily prison population stood at around 42,700. By mid-1988 it had risen to 45,700 and remained relatively stable at that level until 1995, assisted to some extent by the measures adopted in the Criminal Justice Act 1991 (see Ministry of Justice 2016: 2).

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The White Paper signally failed to address these issues which lay at the heart of the disorders of April 1990, and it compounded this error by setting out a raft of reforming policies within prisons that were both unrealistic and undeliverable while the prisons estate remained overcrowded and unstable in terms of security and control. This White Paper overtook a previous one Crime, Justice and Protecting the Public (Home Office 1990) which had proposed a new sentencing policy framework for the first time in legislation, and which subsequently emerged in the form of the Criminal Justice Act 1991. This framework with its threshold levels for custodial and non-custodial sentencing imported into legislation a ‘commensurate deserts’ concept of seriousness previously envisaged in the ‘justice model’, and designed to reduce dependence on the use of imprisonment and encourage wider use of an enhanced range of what were termed ‘community punishments’ instead.2 The Act also abolished the ‘earned remission’ system then in use in prisons, substituting for it the various provisions for automatic release from determinate (fixed term) sentences at the mid-point that remain in use to the present day. While the evident purpose of the 1991 Act was ultimately to reduce the size of the prison population, it became seriously undermined by incorporating within it a ‘bifurcated’ approach to the punishment of serious violent and/or sexual offenders by imposing on them a form of exemplary sentencing permitting the courts to impose longer custodial sentences ‘to protect the public from serious harm from the offender’(CJA 1991, Sections 1(2)(b) and 2(2)(b) respectively) even if such a sentence was out of proportion to the seriousness of the current offence.’ In such a manner, the principle of proportionality implicit in the ‘justice model’ became subordinated to that of incapacitation in such cases already singled out for severe punishment in the first place. CJA 1991 (implemented in October 1992) did lead to a short-term reduction of almost 5,000 in the prison population, particularly within 2

These measures were formerly used in the form of Probation, Community Service and other Orders involving supervision within the community, and the Fine for which the concept of Unit Fines was substituted based on the ability of those thus sentenced to pay in full from income or earnings over a specified period, rather than on an immediate basis which encouraged default.

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that section of it that were serving sentences of up to four years (effectively up to two years in custody), but the reduction was swiftly eroded by a marked increase in the use of longer sentences in the Crown Courts once the judiciary had internalised the effects of the new custodial sentencing structure and its release conditions.3 In addition, although it had become apparent to the government as early as 1988 that short prison sentences were not effective in reducing crime or recidivism (i.e. of evident deterrent effect), the judiciary were markedly reluctant to accept a diminution in the supposed efficacy of deterrence as a cardinal principle of criminal punishment. In April 1992, and following upon a further General Election which returned the Conservative government to power, John Major appointed Kenneth Clarke as Home Secretary in hisre-shuffled Cabinet. By later in 1992 the situation described above had placed the government and the judiciary on a potential collision course which was only resolved by what was described by Ashworth and Gibson (1994: 101) as ‘one of the most remarkable volte faces in the history of penal policy in England and Wales’. Implementation of CJA 1991 had resulted in serious criticism in the media and within the judiciary who claimed it to be ‘soft on crime’ and to have increased public risk. As a result, early in 1993, it was evident that the government was seriously re-appraising its stance on ‘law and order’, the use of imprisonment, the provision for Unit Fines, and control of the size of the prison population. In addition, in the Autumn of 1992, and by a most unusual process of recruitment for the Home Office, Derek Lewis a former Finance Director of the Ford Motor Company and Chief Executive of Granada Television was headhunted to become the Director General of the Prison Service. The post had previously been filled following a curiously secretive ‘inhouse’ selection process within the senior grades of the Civil Service on a unadvertised basis, and with the final acceptance of the Home Secretary (Lewis 1997, op. cit.: 1–15). He took up the post in December 1992, and within a short period of time began to make a significant impact

3 Meaning that in practical terms if a sentence of, for example, three years imprisonment was considered appropriate, then a term of six years had to be imposed on conviction to take account of automatic release at the mid-point.

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upon the culture and operational effectiveness of the Service which was widely welcomed by those working within the prisons of England and Wales.

Managerialism and Privatisation: Twin Pillars of a New Penal Strategy The concept of systems management arrived in Europe from its origins in the USA in the early 1990s and brought with it a new culture of business management predominantly focused upon the delivery of public sector services. Underlying this concept was a belief that such services could be more efficiently undertaken if the organisations responsible for their delivery were operated as if they were ‘for-profit’ enterprises, even though they remained government institutions funded through state taxes. Such a cultural ‘shift’ implied abandonment of bureaucratic controls and traditionally protective management structures such as those frequently encountered in government departments, and adoption of more ‘scientific’ methodological criteria that would analyse and measure the effectiveness of systems performance in service delivery. The term ‘new public management’ became the ideological descriptor for this transitional process which required a new generation of appropriately trained management ‘scientists’ who would deliver enhanced efficiency in operational performance, and ‘value for money’ in terms of the expenditure centrally controlled and allocated by government to departments within the public sector services. The mantra adopted for this process embraced terms and techniques such as ‘performance measurement’, ‘key performance indicators’, and ‘cost-effectiveness’, which became the linguistic foundations of managerialism.4

4 For further reading and explanation of the concept of managerialism see: W.F. Enteman, Managerialism: The Emergence of a New Ideology, Madison, Wisconsin: University of Wisconsin, 1993; R.R. Locke and Spender, J.-C., Confronting Managerialism: How the Business Elite and Their Schools Threw Our Lives Out of Balance, London: Zed Books, 2011; and T. Klikauer, Managerialism: A Critique of an Ideology, London: Palgrave Macmillan, 2013.

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The managerialist credo was manifested in a number of ways within the Prison Service during the 1990s. First, and foremost, in the recruitment of Derek Lewis to be its Director General in 1992; in the allocation of financial budgets to individual prisons—albeit with considerable restrictions attached; in a new approach to the training of junior prison governors from 1990 onwards5 ; and in the inception and delivery of modular courses in management theory and systems management techniques for in-Service managerial grades. For tutors (subsequently re-titled as trainers) at the Prison Service College, Wakefield, it also became obligatory to attend a year of ‘sandwich-type’ courses at the Civil Service College in Berkshire to equip them, and representatives of other government departments, with the techniques to deliver the new corporate management ethos that was to prevail in the 1990s and onwards. Within the criminal justice process, and wider as part of this extensive ‘re-imaging’ of public sector departments, there arose the contentious issue of the extent to which it might be both legitimate and in the national interest to reduce the existing monopoly of certain public sector functions of government by opening them up to private sector operation—a process to be known subsequently as ‘privatisation’. In the late 1980s, and in the wake of the widespread disorders within the penal system, a debate had emerged suggesting that some of the pressures on the criminal justice process might be reduced by such a measure, but had been opposed in principle by the (then) Home Secretary Douglas Hurd in parliament in 1987 (HC Deb, vol. 19, col. 1299, 16 July 1987).6 However, by the autumn of 1988, a Green Paper had been prepared (Home Office 1988) which recommended the ‘contracting out’ of court and escorting duties undertaken by police and prison officers to private sector operation. It also proposed a wider participation by such entities in

5

The author was at that time a tutor at the Prison Service College, Wakefield, jointly responsible for the implementation and training of the first two annual Accelerated Promotion Scheme Courses for direct entry of graduate recruits to the Governor Grades of Prison Service and selected Prison Officers in 1991–2. 6 In fact, the debate arose from a pamphlet published by the Adam Smith Institute, Omega Report on Justice Policy, London: ASI Research, 1984. See also: A.J. Tesseyman, The New Right Think Tanks and Policy Change in the UK , D.Phil Thesis, University of York, 1999, pp. 208–252.

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the operation of remand prisons subject to an examination, by management consultants, of the operational principles and possible problematic implications that such a measure might involve. This apparent U-turn in government thinking signalled a retreat from its 1987 position on privatisation within the criminal justice arena, and also the possibility of that the existing monopoly of the public sector might be abandoned without an undue increase in public risk. It subsequently transpired in the preparation and drafting of the Criminal Justice Bill that was scheduled to become the Criminal Justice Act 1991, that an opportunity arose to propose legislationwhich would allow privatisation of future remand prisons of which the first was under government construction in Humberside at the time. As was subsequently recorded by Lord Windlesham (1993), the (then) Home Secretary David Waddington was not convinced about the wisdom of such a departure from the status quo, and referred the matter to the Prime Minister for a decision on the basis of indications that the remand population was actually decreasing in size due to lesser resort by the courts to remands in custody, and more extensive use of bail instead. In the event, Margaret Thatcher had decided that the concept of privatisation should be implemented, but that it should extend only to the operation of court services and prisoner escorting, that existing remand prisons7 should be exempted from its scope, and only those remand prisons brought into use after implementation of the Act should fall to be considered for such treatment. However, this caveat was overturned during the passage of the Bill through parliament by a Conservative back-bench amendment extending the power to contract out any form of prison, whether holding remand or sentenced prisoners, and whether new or already existing (CJA 1991, Section 84). It was in this manner that the privatisation process became a reality within the criminal justice process of England and Wales in the early 1990s, although it was only the beginning of what was subsequently, and relatively speedily, implemented to a considerably wider extent. For no sooner had the CJA 1991 reached the Statute Book, than it was to 7

The wording of the Bill provided that prisons at the time functioning as Remand Centres, and those other (mainly Local) prisons housing remand prisoners, should be exempted from the scope of the legislation (see Cavadino and Dignan 1997, op. cit.: 156–157.

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be followed by other measures of a considerably more extensive nature as the decade passed. Even at this stage, however, it will be apparent to the reader that this sequence of developments involving managerialism and privatisation was bound inevitably to change most profoundly the nature of both prison governance and the shape of the prisons estate in the mid-1990s and beyond. Budgetary constraints, the naissance of a new management culture, and the ever-present spectre of trades union militancy, in combination with a return to prison overcrowding after the brief period of respite provided by the sentence restructuring and automatic release provisions of CJA 1991, were pre-cursors of a new penological era: one which swiftly occurred for reasons now to be discussed.

Resurgence of the ‘Law and Order’ Mantra Post-1992 For those working in prisons who had experienced at first hand the devastation of the Manchester riot and its aftermath, and who had returned to the comparative ‘normality’ of their daily working posts in the Prison Service, the period was one of considerable confusion and doubt. The Woolf Report (1991, op. cit.), ostensibly accepted and in many respects apparently welcomed by the government, held out a promise that if it was implemented, the turmoil and uncertainty of life in the prisons of England and Wales would improve—albeit slowly. The sentencing structure and provisions enacted in CJA 1991 and which were implemented in April 1992 onwards, combined with the hasty construction of additional houseblock construction within many existing prisons, had brought some respite to the overcrowding situation. However, adoption of the new ‘managerialist’ approach to prison management and its budgetary implications, in combination with the evident enthusiasm of the government to pursue the privatisation process, to whatever extent, was a matter of considerable concern and professional anxiety for prison governors. It also raised expectations of increased strain within the industrial relations situation in prisons— always a fragile affair within which change to working conditions was

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resisted by the militant and obstructive trade unionist behaviour of the POA—an antediluvian relic of many decades past. At the strategic (Home Office) level of prison management during the same period, sudden and apparently arbitrary changes of direction in government criminal justice policy sent periodic shock-waves through the penal system. One such was that decided upon by Kenneth Clarke in February 1993 that two major provisions of CJA 1991—those involving the use of Unit Fines, and within Section 29 of the Act restricting consideration of previous convictions by the courts when sentencing offenders—were to be repealed by the Criminal Justice Bill then in the process of parliamentary consideration, and which had statutory effect in the CJA 1993. However, in May 1993, following a further cabinet ‘re-shuffle’, the incumbent Home SecretaryKenneth Clarke—the last of a series of five successive ‘moderate’ holders of that post—was replaced by Michael Howard, a right-wing politician known to espouse the law and order rhetoric and its ‘tough on crime’ ideology. His remit was to implement the ‘crusade against crime’ as a major component of the Prime Minister John Major’s ‘Back to Basics’ initiative subsequently announced at the Conservative Party Conference in October 1993. This particular political package of measures was to have a profound and long-term impact upon the criminal justice process of England and Wales over the years that followed. In the months immediately preceding the Conference, it was announced that the government intended to contract out the management of the newly re-built Strangeways Prison in Manchester, although the Prison Service would be permitted to submit a competing bid to retain the operation of the prison—a bid which, ironically, was successful, and the prison returned to public sector management. It was further made known in September 1993 that the government planned to contract out some ten per cent of the existing prisons in England and Wales (up to 12 of 120) in order to create a viable private sector to provide ‘sustained competition’ within the Prison Service in future years (HM Prison Service 1993). As a result, some 20 prisons were selected to undergo a ‘market-testing’ process over the ensuing months into 1994.

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Michael Howard’s address to the same conference, alluded to ever afterwards as his ‘Prison Works’ announcement, was evidently intended to convey a very strident warning: the penal process was going to change, and the prisons system within it was destined to be the bedrock of the change agenda. His wording of the message was precise and direct: ‘Let us be clear. Prison works. It ensures that we are protected from murderers, muggers and rapists—and it makes many who are tempted to commit crime think twice.’ His speech included a 27 point plan for change within the criminal justice arena, among which were the building of six new private sector prisons, compulsory testing of prisoners for drugs, restrictions on bail and cautioning, and a re-shaping of Community Service Orders to make them more punitive. In summary of these measures, he announced: ‘This may mean that more people will go to prison. I do not flinch from that. We shall no longer judge the success of our system of justice by a fall in the prison population.’ Implicit within this warning message was a clear indication that many of Woolf ’s reforming measures were at the very least ‘on hold’, if not destined for abandonment. Prison conditions should, Howard added, ‘be decent but austere’, the granting of home leave considerably reduced, and privileges in prisons earned by good behaviour. Such matters were to be an agenda for change in the short term. In the meantime, however, the combination of his message and Kenneth Clarke’s previous measures in the CJA 1993 sent a clear indication to the courts that sentencing could be more punitive,8 and also that the incapacitation of serious and repetitive offenders—particularly for violent and sexual offences—was to be very much part of that agenda.

By the close of 1993, it had become abundantly clear that the average daily prison population was rising faster than the ability of the Prison Service to provide the additional accommodation necessary to resolve the endemic problem of overcrowding in many prisons. Indeed, the problem was to a significant extent compounded by an initiative within the Home Office, accepted by the Prisons Board in 1994, to legitimise 8

This was implied in the CJA 1993 provision in relation to enabling sentencing officials to take note of previous convictions for similar offences to those currently before the court.

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the excessive occupation of prisons above the level of Certified Normal Accommodation (CNA) which was that level which the establishment was originally designed to accommodate. This was done by adoption of a new measure known as Operational Capacity (Op. Cap.). The term has been marginally re-phrased from its original specification in 1994, but generally, it applies to those prisons (with the exception of the Dispersal and most of the Category B Training prisons) in which it was deemed appropriate to house prisoners in excess of CNA levels, predominantly by ‘doubling-up’ cells designed for single occupancy to shared occupation. The prisons most affected by this measure were the Local and Category C Prisons, and to levels of overall occupation assessed by (then) Area Managers to be sustainable without a significant threat to security and control. The term remains in use to the present day. That was not, however, the end of the matter. Further on in this account, it will become clear how, and to what extent, the process of privatisation—once fully developed with the building of larger and privatised prisons—was used to accommodate an increased volume of overcrowding without resort to a considerable increase in spending on prisons in the public sector, and in pursuit of the ‘law and order’drive to enhance crime control. In summary of this account so far, however, it will be plainly evident that the combination of strategic managerialism and privatisation within the criminal justice process embarked upon in the first half of the 1990s was bound to exercise a profoundly detrimental effect upon the moraleand operational effectiveness within the Prison Service which was already in crisis, and also in the range of other organisations (Probation Service, Courts, etc.) associated with its functioning.

The Judicial Response The loosening of sentencing restrictions from the end of 1992 onwards resulted in an almost immediate rise in the prison population as increasing numbers of offenders were sentenced to imprisonment, and for longer periods in custody, in spite of the release criteria from determinate sentences enacted in CJA 1991 (see Ministry of Justice 2016,

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op. cit.: 2).9 The increases in the average daily prison population that followed upon the legislation enacted in CJA 1991 and 1992 (see fn. 9 below) were to an extent predictable as the judiciary internalised the ‘Prison Works’ ideology, but were at the same time also perverse since it was also evident that overcrowded prisons would become increasingly incapable of operating regimes designed to reduce recidivism. This situation brings into the focus of discussion within this work three issues of considerable significance. The first is that of whether a sentencing structure, enforced by legislation, is an essential safeguard against the excessive use by the courts of imprisonment.10 The second, which becomes an important theme to be discussed later, is that of why rates of imprisonment in mainland Britain as a proportion of the population are considerably and consistently higher than those found in many Western European jurisdictions. The third, and certainly a contentious issue, is that of whether statutory measures should be set in place to protect prisons from overcrowding above certified levels of accommodation, and how such measures might be enforced. One of the (at least initially) unintended consequences of the move towards privatisation of prisonsso readily embraced by the Conservative Party in England and Wales during the 1990s became that of a swift rise in the daily prison population which would outstrip the ability of the government to expand the prison estate to accommodate it, while at the same time reducing (as Woolf 1991 had recommended) overcrowding and inhumane conditions in existing prisons. New prisons, of whatever size, require a ‘lead time’ of at least five years to construct and bring into operation. In the circumstances prevailing post-Woolf and the widespread disorders culminating in the Strangeways riot of April 1990, considerable effort had to be devoted towards enhancing the physical security provision in many of the existing Local and Category B

9 In fact, the daily average population in custody rose from 40,600 in December 1992 to 43,600 by May in the following year, and again eventually to 55,851 in July 1996 from which level it was predicted to rise even further in the years that followed. 10 Here, the use of the term ‘excessive’ is intended to mean to an extent to which exceeds the capacity of prisons to operate daily regimes for all prisoners with the purpose of reducing offending on release.

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Training prisons to prevent a recurrence, in addition to the construction of additional houseblock accommodation within their perimeters to reduce ‘slopping-out’ and also house additional prisoner numbers.11 , 12 The increase in the size of the prison population (see fn. 9 above) occurred largely because the courts resorted to the use of short-term imprisonment more widely in preference to existing community sanctions (Probation, Community Service, etc.), and also due to the repeal in CJA 1993 of the Unit Fine provision originally made available in CJA 1991. It was also encouraged by the belief—tenaciously maintained within the judiciary, although entirely unproven within rigorous criminological research—that sentences to imprisonment deter subsequent crime and recidivism (cf. e.g. Zimring and Hawkins 1971; Gibbs 1975; Beyleveld 1979a, b; Bean 1981; Nagin 1998; Paternoster 2010; Cornwell 2018). Uncritical acceptance of deterrence doctrine at an intuitive level of reasoning has a long and widely unquestioned history within traditional British jurisprudence, recurring, it seems, within successive generations of judges and magistrates as if it were brought down a mountain in tablets of stone. It has, however, contributed in large measure to many of the contemporary problems faced by the penal ‘system’. Not even the re-branding of community sanctions as ‘community punishments’, and the introduction of the Combination Order in CJA 1991 had convinced the judiciary of the ‘penal bite’ of the range of noncustodial alternatives available to them as alternatives to short-term custody.

11

Here it will be recalled that the government had committed originally (in 1991) to ending ‘slopping-out’ by the end of 1994, a target that was subsequently unachievable largely because the preferred method of doing so involved converting one in every three adjacent cells into provision of integral sanitation facilities for the occupants of cells on either side. The process thus conducted resulted in the temporary loss of cellular accommodation of one-third within the areas of prisoner accommodation being converted at any one time. 12 The actual number of persons sentenced to custody rose from 58,000 in 1992 to 69,000 in 1994 (Home Office 1995: Table 7.12).

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Further Problems with Prison Privatisation Following upon the announcement made by Michael Howard in September 1993 that the government intended to contract out some twelve existing prisons in England and Wales to private sector operation, a ‘market testing’ exercise was to take place involving more than twenty prisons in an ‘initial’ phase of a potentially more extensive privatisation process. In this phase, it was envisaged that up to seven prisons would be selected for transfer to the private sector, with ‘in house’ bids being excluded from the bidding procedure. In October 1994 the Prison Officers Association (POA) lodged a formal complaint with the Central Arbitration Committee that it had not been properly consulted about the market testing exercise, and its submission was eventually accepted, although not until the New Year of 1995 due to delays in the conduct of the arbitration process. In the meantime, other and more pressing issues were occupying the minds of the Home Secretary, the Prisons Board, and prison establishments throughout England and Wales. The market testing initiative ground almost to a halt, much to Howard’s chagrin, when it was decided by the Prisons Board to recommend a delay for an unlimited period which was accepted by the Arbitration Committee. Two years later, no further move had been made to resuscitate the market testing process, and no existing prison had been selected for transfer to the private sector. Part of the reason why the privatisation process involving market testing faltered in late 1994 and early 1995 was undoubtedly due to the occurrence of two high-profile escapes from high security prisons which took place in September 1994 and January 1995 respectively. The first was a short-lived but deeply embarrassing escape of five exceptional risk IRA prisoners and one other from the Special Secure Unit (SSU) at Whitemoor Prison near March in Cambridgeshire on Friday 9th September 1994. The subsequent investigation into the circumstances in which the escape was made possible from a ‘prison within a prison’ revealed a catalogue of complacency and neglect of duty on the part of the staff of the Unit that was truly deplorable, and sent shock-waves

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through the entire Dispersal Prisons network of the Prison Service.13 It was made even more serious by the fact that some of the escapees were armed with handguns, and that when, subsequently, a thorough search of the prison was conducted, a package of Semtex explosive, detonators and fuses was discovered in a box of artists materials in the stored property of one of the prisoners involved.

Turmoil and Confusion Post-Whitemoor The second notorious escape occurred some four months later on Tuesday 3rd January 1995 following upon a major incident of disorder that broke out at Everthorpe Prison in Humberside on the previous day. It involved the escape of two Category A prisoners and one other in Category B from the maximum security Dispersal Prison at Parkhurst on the Isle of Wight. The prisoners, who worked in the Engineering Workshop, had managed to fabricate a usable pass key to the internal areas of the prison, obtain a handgun and 0.22 ammunition, fabricate a scaling ladder, and, taking wire cutters and tools from the workshop, make their way to the perimeter fence and wall. They scaled the wall undetected by the geophone detectors and video cameras mounted on the wall which were facing the wrong way, and thereby made a clean escape during an evening gymnasium session during which their absence went un-noticed by supervising staff. The escapers remained at large on the Isle of Wight for almost a week, unable to find a means of reaching the mainland of the UK, but were finally arrested by police and returned to lawful custody. Upon being informed of this lamentable incident, the Home Secretary Michael Howard demandedthe immediate suspension of the prison governor John Marriott from duty, and an investigation into the circumstances in which it had occurred. The Prison Service Director of Security Richard Tilt was despatched to the scene to provide an initial report, and the Director General Derek Lewis who had previously planned to visit

13 The Enquiry into the escape from Whitemoor Prison was conducted by Sir John Woodcock, a retired former Chief Inspector of Constabulary and a team of senior police officers (Woodcock 1994).

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the neighbouring prison at Camp Hill on Friday 6th January also visited the prison. There followed some high-level discussion with Home Office legal advisers over the legality of removing the governor from his duties, and it was eventually resolved by moving John Marriott to ‘other duties’ having handed over command to his deputy governor, and pending the outcome of the investigation into the circumstances of the escape. The Home Secretary having insisted that the investigation be conducted by a General, three potential appointees were approached. Two declined, and the third accepted in the person of General Sir John Learmont, a former Quartermaster-General of the Army, and a team including Sir John Woodcock whose team of police would investigate the Parkhurst escape, Major-General Mike Heath who would coordinate the eventual Report from the Home Office, and Gary Dadds a former Regional Director of the Prison Service who would advise on prisons issues. Overall, the remit of the Report would be a ‘Review of Prison Service Security in England and Wales’ in addition to the circumstances of the Parkhurst escape. Personalities apart,14 with such a loosely phrased overall remit and a chairperson with no necessary prior knowledge of prisons or of the political manoeuvrings and internal procedural stresses of daily life within the Home Office or the operational Prison Service, it could hardly be expected that the eventual Review Report would be a masterpiece of precise or penetrative analysis. Originally scheduled for delivery in May 1995, the compilation process encountered delays and eventual procedural difficulties as it approached completion.15 The Learmont Report was eventually published on 27th September, and as Derek Lewis the Director General of the Prison Service subsequently noted: ‘The final Learmont Report, for which we had waited so anxiously.. arrived on 27 September.16 It was little better than the draft we had seen in May. A few 14

General Learmont was well known throughout the Army for his forthright and at times somewhat unpredictably forceful reactive behaviour which earned him the nickname ‘Raging Bull’ among his colleagues. 15 Such, for instance, as the ‘Salmon’ procedure under which any person featured critically or adversely in a report must be furnished with a copy of the document and provided with the opportunity to respond to the matter or matters relating to them. 16 Learmont, Gen. Sir J., Review of Prison Service Security in England and Wales and the Escape from Parkhurst Prison on Tuesday 3rd January 1995, Cm 3020, London: HMSO, 1995.

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gross inaccuracies had been removed, but no attempt had been made to provide a solid evidential base, or any degree of balance’ (Learmont 1995; Lewis 1997, op. cit.: 192). The Report contained 127 recommendations for improvement of security procedures and practices across the Prison Service estate, some of a generally applicable nature and others specific to Parkhurst prison itself. In relation to the latter, Learmont recommended that the prison should be removed from the Dispersal Prison estate and cease to house Category A prisoners when an alternative prison could be identified and brought up to the required security standard. However, he also suggested provision of a ‘supermax’ prison for exceptional risk and significantly disruptive or violent prisoners to be confined in, and in conditions in which visits would be of a non-contact nature behind bullet-proof glass screens to prevent the possibility of weapons, drugs and other dangerous items entering the establishment imported by visitors. The supermax recommendation re-opened a controversial issue dating back to the 1960s following the notorious escape of the spy George Blake from Wormwood Scrubs Prison in London on 22nd October 1966. Blake had served five years or so of a forty-two-year sentence for spying with the Russian KGB while an employee of the British Intelligence Service MI6 for some twelve years in Korea and Berlin before being brought to justice. The subsequent Inquiry into this (and some other) escapes conducted by Admiral of the Fleet Lord Louis Mountbatten of Burma (Home Office 1966, op. cit.) had included a similar recommendation for what was termed by him a ‘Vectis’ supermax prison to house prisoners assessed as posing a significant escape risk,17 and those also whose disruptive behaviour in prisons posed a serious threat to security and control. The fact that Blake was subsequently smuggled out of the country under the false floor of a van, conveyed to Berlin and thence to Moscow where he was given asylum and almost celebrity status, enabled him to remain at large to the lasting embarrassment of the British government. He eluded extradition and died aged 98 in Moscow a decorated hero in December 2020. 17

Due to their known accomplices and contacts outside prisons, and having the resources and determination to escape with the assistance of such persons and the resources at their disposal.

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Mountbatten’s proposal to ‘concentrate’ high risk prisoners in a single prison had considerable cost and operational implications.18 His Report also coincided with another study undertaken by the Advisory Council on the Penal System (ACPS) and published in 1968 which recommended an entirely different strategy for dealing with such prisoners. The ACPS Report was named after its chairperson Leon Radzinowicz,19 later the first Wolfson Professor of Criminology at Cambridge University and knighted in 1970, which adopted an alternative perspective. The Report suggested that at much lesser capital and financial cost, such prisoners could be better housed and supervised in lesser numbers in existing prisons, upgraded to higher levels of security, and geographically ‘dispersed’ to dilute their disruptive effect upon the stability of the prisons system. Acceptance of this concept led to the establishment of what became known as the Dispersal Prison network in the early 1970s. However, alongside this development was that which led to the inclusion of a small number of ‘Control Units’ from 1972 within the dispersal prisons tohouse persistently disruptive and violent prisoners for unlimited periods of time in austere regimes of isolation until they showed a willingness to conform with normal regimes. These units were abandoned in 1975 as a result of public outcry and media criticism (see Birkinshaw 1981; Walsh 1983: 45, and 181–182). The Learmont Report, with its plethora of generalised recommendations, some of which were justifiable but lacked detailed specification, proved to be a lifeline for the Home Secretary Michael Howard under extreme parliamentary and media pressure to be seen to act decisively or resign. He took refuge in the assertion that responsibility for the day to day operational performance of the Prison Service was a matter for the Director General, and that for overall policy direction lay with the Home Secretary and parliament under the terms of the Agency Agreement for the Prison Service. Accordingly, he demanded the immediate resignation of Derek Lewis, and his temporary replacement by Richard Tilt, 18

Not the least of which was the problem of identifying a suitable site for the prison, and also the inevitability that some prisoners would be so far removed from their families as to preclude visits on a regular basis. 19 Here, see: Advisory Council on the Penal System, The Regime for Long-Term Prisoners in Conditions of Maximum Security (The Radzinowicz Report), London: HMSO, 1968.

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the Director of Operations, pending a decision as to the appointment of hisreplacement. Meanwhile, the Prison Service was left in a state of shock at the loss of its effective and innovative leader, and deeply suspicious of the political manoeuvrings that had led to his departure. The Learmont Report upon which Howard had relied so heavily for his reprieve had to be implemented insofar as that was possible without massive capital investment, and the average daily prison population continued to rise rapidly.20 Issues of security and control, the relationship between which had never been satisfactorily resolved since the 1960s, continued to dominate the discourses and practices of prison management as we shall see later in this work. Moreover, a further General Election was due in mid-1997, and the political rhetoric between the Conservative and Labour parties in parliament in relation to criminal justice, formerly clearly differentiated, had narrowedto a very considerable extent.

Towards the End of an Era The outcome of the events within the criminal justice process outlined in this chapter, and in particular in the aftermath of the ‘Prison Works’ declaration by Michael Howard in late 1993, signalled an impending era of confusion and uncertainty within the Prison Service of England and Wales as the General Election of 1997 approached. The privatisation initiative, although underway, had been almost halted in its tracks when the ‘Market Testing Exercise’ was derailed by the POA’s submission to the Central Arbitration Council which was upheld. The serious escapes from Whitemoorand Parkhurst Prisons in late 1994 and January 1995 respectively had focused attention on the operational deficiencies of the Prison Service, and the subsequent Reports into both of these incidents had gifted to the parliamentary Labour Opposition a golden opportunity to pursue seismic change within the public sector of correctional services.

20

By mid-1996 the average daily prison population had risen sharply to over 55,600 as previously noted.

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It also transpired that in the mid-1990s, and in the face of mounting concern and criticism over the extent of prison overcrowding in the media and among reform groups,21 that with the tacit acceptance of government Ministers the Prison Service had devised a most curious ‘fudge’ process to resolve the overcrowding situation. This came in the guise of a revised measure of increased permissible occupation of prison accommodation over and above that of Certified Normal Accommodation (CNA) which had formerly defined the maximum level of occupancy that each prison was originally designed to provide. The new measure was termed the Operational Capacity (Op. Cap.) defined as ‘that level of additional occupation which, in the judgement of (then) Area Managers, a prison might provide without a significant risk to, or compromise of the maintenance of security, control’. The measure— which did not apply to the maximum security Dispersal Prisons—thus sanctioned the ‘doubling-up’ of single cells in Training Prisons to twinoccupancy, and of dormitory accommodation on a similar basis. It did not, however, necessarily reflect the capacity of the prison to operate a full daily regime for all prisoners on a reliable basis. It may reasonably be asserted with the benefit of hindsight that the Op. Cap. initiative was welcomed by the government as a means of averting (or at least postponing) the problems (and costs) posed by the swift rise in the prison population post-1993 which had outpaced its ability to provide new prison places both through the privatisation process (DCMF) of new prisons with its deferred costs, and additional houseblock building within existing public sector prison perimeters. In either case, however, it was to prove a strategy of despair since it institutionalised the practice of overcrowding, impoverished regimes in many training prisons, and effectively abandoned most of the reforming measures proposed by Woolf and Tumim (1991, op. cit., passim). We shall return to the outcomes of this situation in subsequent chapters of this work. 21

Most notably the Howard League for Penal Reform, the Prison Reform Trust, the National Association for the Care and Resettlement of Offenders (NACRO), and Prisoners’ Rights groups such as PROP (Preservation of the Rights of Prisoners) and RAP (Radical Alternatives to Prison) which, since the mid-1970s, had attracted considerable media attention in the UK and Western Europe.

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The second and somewhat confusing development within criminal justice policy as the 1997 General Election approached was the preoccupation of the Home Office with preparing legislation to introduce mandatory and minimum sentences with considerably more severe provisions for the courts to punish offenders convicted of repeated drugs and burglary offences. This move was coupled up to what became the Offensive Weapons Act 1996, the Sexual Offences (Conspiracy and Incitement Act) 1996, and the Sex Offenders Act 1997, all of which provided for increased severity in sentencing. Evidently, the Conservative government of John Major had decided to play the ‘law and order’ card for all it was worth as a vote-winning strategy at the Election. On 1st May 1997, the UK went to the polls in a General Election tired of 18 consecutive years of Conservative rule, and yet dubious about the ability of alternative Opposition Parties, so long out of government, to deliver an effective programme of government for the following five years. The re-imaged ‘New Labour’ Party led by Tony Blair had issued many manifesto pledges, among which was an expressed intention to outlaw anti-social behaviour in public places, fast-track offenders to justice, and deliver more effective community punishments to reduce such offending. The manifesto also promised a restructuring of the House of Lords to reduce and ultimately remove hereditary peerages, increasingly devolve central government powers to Scotland, Wales and Northern Ireland, but no specific mention of significant penal reformor reduction of the prison population. In the event, the New Labour Party won a landslide victory, gaining 418 of the 659 seats available, reducing the Conservative Party to 165 seats and the Liberal Democratic Party to 46 seats, with other parties sharing the remaining 30 seats. Tony Blair became Prime Minister with Gordon Brown asChancellor of the Exchequer and Jack Straw as Home Secretary. The New Labour era had begun with pledges to be ‘tough on crime, and tough on the causes of crime’, but little of substance to indicate how this was to be delivered. Meanwhile the average daily prison population had risen to around 65,00022 and showed no signs of decreasing. In the chapter that follows, we shall examine the impact 22

An increase of almost 20,000 on the figure a decade earlier.

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of this situation on the ways in which New Labour approached what had now become an enduring penal crisis, and the manner in which it responded to the urgent need to resolve it.

Conclusion to Chapter 3 As to the three main themes implicit in the title to this chapter, the prisons remained overcrowded and increasingly violent and drugs infested.23 Managerialism had secured a visible presence, at least in the Headquarters structure of the Prison Service within the Home Office24 ; and the process of privatisation of prisons had become embedded in the future shape of the criminal justice process in England and Wales.25 The average daily prison population was continuing to rise at a pace greater than new accommodation could be provided, and retrenchment in the use of Temporary Release exacerbated the overcrowding situation within many Training and Local Prisons. This was the legacy inherited by the New Labour administration in May 1997 from the preceding eighteen years of Conservative domination of the justice process. To complicate matters further, the ‘Prison Works’ ideology adopted by the government post-1993 had been inspired by a voluble farRight segment of the population and their parliamentary representatives dedicated to a crusade against ‘murderers, muggers and rapists’ and their long-term incapacitation from social participation and citizenship. This called for ever more draconian sentencing practices in the courts, 23

Due largely to the imposition of the term ‘Operational Capacity’ (Op. Cap.) to permit crowding of prisons over and above the level of ‘Certified Normal Accommodation’ (CNA) for which each prison was designed to accommodate. 24 The entire organisation of Prison Service Headquarters within the Home Office had been revised into a number of Divisions which mirrored the Fresh Start structure that was imposed upon prison establishments in England and Wales (i.e. Directorates of Custody (DOC), Inmate Activities (DIA), Inmate Programmes (DIP), Personnel & Finance (DPF), Sentence Planning (DSP), etc. 25 Though the intention to ‘Market Test’ some twenty prisons with a view to privatisation had been abandoned, by 1997 four prisons were under private sector operation (The Wolds, Doncaster, Blakenhurst, and Buckley Hall), and a further three were under construction under the Private Finance Initiative (PFI) at Altcourse (Liverpool), Forest Bank (Salford) and Parc (Bridgend) on a DCMF basis, and due for completion by the end of the decade.

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increased judicial discretion, and sentence durations disproportionate to the seriousness of the offences convicted in many instances in pursuit of public protection rather than justice. In the months immediately prior to its removal from office, there was clear evidence that government plans were being laid to legislate in this manner through mandatory minimum sentencing provisions, ‘two strikes’ provisions, and increased used of indeterminacy. In the next chapter, we shall examine the way in which the New Labour government reacted to this particular situation.

References Ashworth, A. and Gibson, B. (1994) ‘The Criminal Justice Act 1993: Altering the Sentencing Framework’, Criminal Law Review: 101–109. Bean, P. (1981) Punishment: A Philosophical and Criminological Inquiry, Oxford: Martin Robertson. Beyleveld, D. (1979a) ‘Deterrence Research as a Basis for Deterrence Policies’, Howard Journal of Criminal Justice, vol.18: 135-149. Beyleveld, D. (1979b) ‘Identifying, Explaining and Predicting Deterrence’, British Journal of Criminology, vol.19: 205-224. Birkinshaw, P. (1981) ‘The Control Unit Regime: Law and Order in Prison’, Howard Journal , vol. 20(2): 69. Cavadino, M. and Dignan, J. (1997) The Penal System: An Introduction, [2nd Edition], London: Sage. Cornwell, D.J. (2018) Criminal Deterrence Theory: The History, Myths and Realities, Den Haag, NL: Eleven International Publishing. Gibbs, J.P. (1975) Crime, Punishment and Deterrence, New York: Elsevier. HM Prison Service. (1993) ‘Michael Howard Unveils Plans for More Private Sector Involvement in the Prison Service’, News Release, (2 September). Home Office. (1966) Report of the Inquiry into Prison Escapes and Security by Admiral of the Fleet, the Earl Mountbatten of Burma, Cmnd. 3175, London: HMSO. Home Office. (1988) Punishment, Justice and the Community, [Green Paper], Cm 424, London: HMSO. Home Office. (1990) Crime, Justice and Protecting the Public: The Government’s Proposals for Legislation, Cm 965, London: HMSO.

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Home Office. (1991) Custody, Care and Justice: The Way Ahead for the Prison Service in England and Wales, Cm 1647, London: HMSO. Home Office. (1995) The Prison Population in 1994, Home Office Statistical Bulletin 8/95, London: Home Office, Table 7.12. Learmont, Gen. Sir J. (1995) Review of Prison Security in England and Wales and the Escape from Parkhurst Prison on Tuesday 3rd January1995, Cm 3020, London: HMSO. Lewis, D. (1997) Hidden Agendas: Politics, Law and Disorder, London: Hamish Hamilton. Ministry of Justice. (2016) Story of the Prison Population 1993–2016 , London: Ministry of Justice. Nagin, D.S. (1998) ‘Criminal Deterrence Research at the Outset of the Twenty-First Century’, in M. Tonry (ed.), Crime and Justice: A Review of Research, Vol.23, Chicago, ILL: University of Chicago Press, pp, 1-42. Paternoster, R. (2010) ‘How Much Do We Really Know About Deterrence Research?’ Journal of Criminal Law and Criminology, vol. 100(3): 765-824. Walsh, D.P. (1983) ‘Control Units’, in D.P. Walsh and A. Poole (eds.), A Dictionary of Criminology, London: Routledge and Kegan Paul, pp. 45 and 181–182. Windlesham, D. (1993) Responses to Crime, Volume 2: Penal Policy in the Making, Oxford: Clarendon Press. Woodcock, Sir J. (1994) Report of the Enquiry of the Escape of Six Prisoners From the Special Security Unit at Whitemoor Prison, Cambridgeshire on 9th September 1994, Cm 2741, London: The Home Office. Woolf, H. (LJ) and Tumim, S. (J) (1991) Prison Disturbances April 1990, Cm.1456, London: HMSO. Zimring, F.E. and Hawkins, G. (1971) Deterrence: The Legal Threat in Crime Control , Chicago, ILL: University of Chicago Press.

4 Re-branding the ‘Toc’ Image: New Labour 1997–2007

As It Was in May 1997 When the New Labour government of Prime Minister Tony Blair took office following the General Electionof May 1997, it inherited a criminal justice process in considerable disarray and confusion in England and Wales from its Conservative predecessors. Many of the policies set in place during the closing (post-1993) years of Conservative rule were of a punitive nature and extent that a traditionally Socialist British Labour government might normally have refrained from implementing.1 This situation presented the incoming New Labour government with a considerable dilemma in terms of its ethos and retention of its historical grass-roots support from the national Trades Unions and their membership.2 The acronym ‘TOC’ as used here denotes ‘Toughness on Crime’ 1 Such, for example, as the privatisation of public sector prisons, the continuous overcrowding of prisons, excessive use of short-term custodial sentences in preference to non-custodial alternatives, and mandatory minimum sentences for more serious offences. 2 Here it will be noted that the majority of the largest Trades Unions in England and Wales were implacably opposed to the process of privatisation of public sector organisations and

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The appointment of Jack Straw as Home Secretary in Tony Blair’s first cabinet was to prove a master-stroke of calculation on the part of the Prime Minister. A parliamentarian of considerableexperience in opposition, formerly Shadow Deputy Prime Minister, Jack Straw was a man of energy and determination with a wide knowledge of the penal system as Shadow Home Secretary from October 1994 to May 1997. He had entered parliament in1979 as MP for Blackburn having studied Law at Leeds University Law School and at the Inns of Court in London. To Straw fell the task of resolving the dilemma of New Labour’s stance on law and order issues in a period in which recorded crime rates across Western Europe (and Britain) were widely declining, and yet in England and Wales the prison population showed no signs of decreasing as might have been expected (Tonry 2001, 2003: 3; Tonry and Frase 2001). It was also the period in which the principle of prison privatisation had become firmly established, new and larger prisons were under construction by private sector consortia, and due to open by the end of the decade. Though no further mention of the Market Testing initiative in its stalled state since 1994 had been made, its resuscitation would have caused widespread unrest and probable industrial action within the Prison Service, and brought the government into serious confrontation with the Prison Officers’ Association and other sympathetic trades unions. The mid-1990s had also witnessed a resurgence of interest in the status of victims of crime on a worldwide basis which, in Britain, had lain dormant since the publication of the original Victims Charter (Home Office 1990). This development was to a considerable extent related to the emergence during the same period of the concept of Restorative Justice (RJ) as an alternative to the prevailing mode ofretributive and deterrent punishment philosophy adhered to by many Westernstyle democracies since the rise and demise of the Justice Model during the 1970s and 1980s. As we shall see later in this chapter and subsequently, this led eventually to a curiously schizophrenic situation within

functional entities such as prisons, policing, transportation, communications and the like, and committed to the preservation of their memberships employed in delivery of such services.

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criminal justice policy formulation in the opening decades of the new millennium. It soon became apparent that such issues were far removed from the minds of the New Labour government as it set about the task of compiling a legislative strategy that would have a significant impact upon the criminal justice process of England and Wales into the Twenty-First Century. The main measures that comprised this strategy are now examined, since their influence upon the decade immediately following was profoundly felt in almost every area of the criminal justice arena.

Chasing the Crime Control Dragon3 Having lived through the experience of working in prisons during the 1980s and 1990s, and also having maintained an active interest in academic research in criminology during the same period and subsequently, it seems appropriate at this stage in this work to reflect on how that experience affected a subsequent analysis of the realities that dominated the professional lives of criminal justice practitioners in those years and thereafter. In so doing, I must declare no deeply held political affiliations throughout a working lifetime of military service and later as a prison governor, since such allegiances might detract from a reasoned discussion of the issues that arise for discussion here. It seems plausible to suggest that in 1997 the New Labour administration resorted to ‘sound-bite’ tactics in relation to criminal justice and the parlous state of the prisons as a means of attracting public support for a ‘tough on crime’ approach in relation to offenders, but in reality, it had no pre-formed strategy for the implementation of penal policy. In actual fact, the options were strictly limited: the choice laid between 3

The term ‘Chasing the Dragon’ has its origins in the drug-taking culture of the narcotics underworld and its dysfunctional outcomes within contemporary societies. It explains how those who resort to drug abuse and experimentation initially experience a feeling of profound subliminal euphoria which subsequent ‘fixes’ of the same substance never entirely replicate. The tendency then becomes that of increasing the strength and/or frequency of the substance in order to re-experience the initial euphoric intensity of feeling, but at increasing cost which ultimately becomes unaffordable, leading to deep frustration and the temptation to resort to criminal activity satisfy the craving which becomes intensely felt.

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crime control andcrime reduction measures, and to a significant extent the two were mutually exclusive. Now, given the fact that police recorded crime rates throughout Western Europe were decreasing within most categories of crime except violence against the person and specific forms of sexual offending which accounted for the highest and the lowest categories of overall serious criminal offending almost universally across Western Europe including Britain (Matravers and Hughes 2003: 51–57), the case for pursuing enhanced crime control measures was scarcely cogent—particularly in relation to sexual offences. In respect of the latter, however, it was the case that throughout the 1990s considerable attention had been devoted in the mass media to the ‘demonisation’ of such offenders who, along with violent and drug offenders, had also been made a specific exception to the statutory framework for sentencing in the Criminal Justice Act 1991, section 44, and were already subject to ‘public protection’ measures of enhanced sentencing severity and duration. The crime control concept arose partly from a questionable belief implicit within the managerialist approach to public governance that all problems could be ‘managed out’ on a systems-based agenda, when allocated sufficient resources to reduce and eliminate them. It was also fuelled by an equally dubious confidence that increasing the severity of retributive punishment for specific forms of offending would deter potential offenders from committing crime, and actual offenders from repeating it. Viewed objectively, it is doubtful whether any government, even of the most totalitarian nature, has ever succeeded in controlling crime, since a significant proportion of all crime is spontaneously committed on an unpremeditated or opportunistic basis. Attempts to control crime necessarily involve the mass incarceration of offenders with the purpose of incapacitating them from committing crime for specified periods of time in pursuit of public safety. Prisons used for such a purpose become criminal warehouses which need make no pretence to change offending behaviour, show any particular respect for individuals other than to meet their basic dietary and physical health needs, and house them securely. It matters little if such places are overcrowded and operate no regime arrangements beyond provision

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of heavily supervised and controlled daily exercise periods, since prisoners will spend the remainder of their daily life locked in their cells. Visitation on a strictly limited basis can be provided on a non-contact basis to prevent the importation of drugs andother contraband items, and possession of personal items reduced to an absolute minimum to make searching procedures simply and effectively undertaken. Prisoners would be uniformly dressed in overall-type clothing and footwear issued to them on reception, and any personal clothing and effects such as jewellery stored until release. Such, in brief terms, is the prescription for decent, safe and austere imprisonment advocated in the ‘prison works’ concept advanced by Michael Howard and other like-minded politicians as appropriate to ‘protect the public from muggers, robbers and rapists, and make others who might be tempted to commit crime think twice’. Of course, such places would, effectively, be gulags designed solely to provide public protection at relatively low cost and with minimal humanity. Whether any significant decrease in crime commission or recidivism would result from their operation would have to be carefully evaluated against other strategies for crime reduction to which we now turn. Crime reduction strategies are of an entirely different nature, relying upon a criminal punishment rationale that actively engages with the personal characteristics and motivations of offenders, their abilities and their deficits, and the nature of their offences. Prisons designed to reduce crime andrecidivism need to operate regimes that fully occupy their charges on a daily basis with constructive and purposeful activities, programmes that encourage them to address the causes of their offending behaviour, and life-skills training to equip them to lead crime-free lives within their communities. For these reasons such prisons cannot be overcrowded, and should provide each prisoner with his/her single occupancy accommodation for which personal responsibility has to be taken. Prison staff in such establishments are not merely ‘turnkeys’, but are professionally trained to engage with prisoners whom they supervise, offering them support and guidance where this is requested or necessary. Though discipline and respect are necessary from each of the parties to these relationships, both are more easily achieved where a level of mutual trust can be established and maintained on a daily basis.

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As will become apparent in the analysis that follows, the strategic behaviour of both the Conservative government post-1993 and its New Labour successors post-1997 veered significantly towards the crime control mode of imprisonment and the use of custody. It also moved away from the crime reduction model which Woolf (1991, op. cit.) and supporters of his prescriptions had so strongly advocated, and which the government had appeared to endorse. In addition to the sentencing provisions in the Criminal Justice Act 1991 previously cited, and in a further Criminal Justice Act in 1993 introducing ‘entry point’ sentences for most indictable offences and repeal of the Unit Fines provision in the Criminal Justice Act 1991, the Criminal Justice & Public Order Act 1994 established Secure Training Centres (STCs) for serious juvenile offenders, and increased sentence lengths for 15- to 17-year-old offenders. For New Labour in 1997 onwards, maintaining the impetus of the of the ‘tough on crime’ agenda had to be harnessed to a crime control model of public protection simply because the crime reduction alternative had far-reaching implications in relation to both the use of imprisonment and the size of the prison population. Since the scene had been set by its predecessors for an expansion of the prisons estate which was already underway through the Private Finance Initiative to accommodate the still rising prison population, however much New Labour was opposed in principle to privatisation, a reductionist strategy would have appeared to be inconsistent with the perceived need of the public for enhanced public protection. Moreover, a reductionist approach would necessitate considerable limitations being placed on custodial sentencing and judicial discretion which would have brought the new government into a serious confrontation with the judiciary that was extremely undesirable at such an early stage in its administration. Public attitudes towards, and understanding of crime, criminal justice and punishment are notoriously difficult to discern and analyse with accuracy. Heavily conditioned by media reportage with its editorial policies and political stances, opinions can quickly be formed, modified, and discarded. High profile cases such as the murder of the two-yearold James Bulger by two ten-year-old boys Robert Thompson and Jon Venables in Merseyside on Friday 14th February 1993 sent shock waves

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of horror and sympathy throughout the nation, but was entirely motiveless and unprovoked. In another widely publicised case worldwide, the brutal rape and killing of seven-year-old Meghan Nicole Kanka by Jesse Timmendequas, a neighbour and previously convicted child molester in Hamilton, New Jersey on 29th July 1995 aroused considerable public anger that his offence profile had not been disclosed by the police to inhabitants of the township in which he resided. The killer was sentenced to death by lethal injection in 1997, but the sentence was commuted to life imprisonment without parole after New Jersey abolished the death penalty in 2007, and the case led eventually to the legislation of ‘Meghan’s Law’ which permitted such disclosure to be made publicly known. Such events as these easily lead to hardened public attitudes against certain forms of offences and offenders, and to disproportionate political preoccupation with measures to reduce and control them. Such has certainly proved to be the case in Britain since the mid-1990s as the volume of legislative measures dealing with sexual and certain other prevalent offences4 since that period bears evidence. In an unusual move, New Labour seized upon the plans laid by the former Conservative government to implement mandatory minimum sentences for certain forms of serious and prevalent offending5 and passed these into legislation in the Crime (Sentences) Act 1997. The Sex Offenders Act 1997 introduced the requirement for persons convicted of sexual offences to register their personal details and residential address to the police in creation of the Sexual Offender Register (SOR) (Ibid.). The Crime and Disorder Act 1998 introduced the Anti-Social Behaviour Order (ASBO), and established the Youth Justice Board (YJB), Youth Courts and Youth Offending Teams (YOTs), and Reparation Orders for young offenders as a non-custodial measure. It also replaced Youth Custody with the custodial Young Offender Detention and Training Order (DTO) for confinement of young offenders in Young Offender Institutions (YOIs).

4 Such, in particular, as Drug Trafficking, Public Order Offences, the Carriage of Offensive Weapons, and Burglary. 5 For example, life sentences for repeated sexual and violent offences; seven years for repeated drug trafficking offences; and three years for repeated burglary offences.

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By mid-1998 the average daily prison population had reached 65,298, an increase of almost 20,000 on the level a decade earlier. 1999 saw the abolition of the Legal Aid Board and its replacement by the Legal Services Commission (LSC), and the opening year of the new millennium heralded the creation of the National Probation Service (NPS) in the Criminal Justice and Court Services Act 2000. The same Act also re-named the existing Probation and Community Service Orders as Community Rehabilitation and Punishment Orders respectively. In the same year, the Sexual Offences (Amendment) Act 2000 reduced the age at which it was unlawful for a person aged 18 years or older to have sexual activity with another of 18 or less to 16 years or less, and the Powers of the Criminal Courts (Sentencing) Act 2000 made a considerable number of ‘consolidating’ changes to practices in the courts, particularly in relation to non-custodial or community sentences. Of all of these wide-ranging criminal justice measures and provisions, only one could be claimed as having any direct intention on the part of the New Labour government to alleviate conditions within the prisons of England and Wales, or reduce the size of the population held in custody. This was the introduction from January 1999 of the Home Detention Curfew (HDC) allowing some prisoners approaching the end of their sentences to be temporarily released subject to conditions of residence and certain other restrictive arrangements.6 It should be noted, however, that such release is subject to recall to prison in breach of its conditions until the expiry of the sentence originally imposed, and under CJA 1991 release provisions. Around 3,000 prisoners are released under HDC conditions on an annual basis, thus easing pressure of numbers within the prisons estate. The HDC is available only to prisoners serving sentences of up to (but excluding) four years, and those imprisoned for sexual or violent offences are not eligible for consideration. Prisoners released under HDC are electronically ‘tagged’ to enable surveillance of

6 The current arrangements for HDC are available in a concise format from the Prison Reform Trust in Home Detention Curfew (HDC), London: Prison Reform Trust, 2020, with appropriate references to the Ministry of Justice, Home Detention Curfew (HDC) Framework, London: Ministry of Justice, 2019, and extant Prison Service Instructions (PSIs) and Orders (PSOs).

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their whereabouts and compliance with the conditions of their Temporary Release Licences supervised by their nominated home area Probation Officer. From the foregoing paragraphs it will be apparent that from the time New Labour took office in 1997, the government progressively introduced increasingly stringent controls and legislation within the criminal justice process with an evident orientation towards crime control, and with particular emphasis on violent, sexual and anti-social offending. The penalties in terms of sentencing for such offences also increased in severity which meant that those convicted and imprisoned would serve longer periods in custody, thus increasing the average daily prison population considerably. ‘Chasing the dragon of crime control’ may have had electoral appeal, but it would be some years before it would be possible to discern whether crime would reduce as a result, or could be verifiably claimed to have been brought ‘under control’.

New Millennium: New Approaches or Old Ones Revived? As the 2000s began, and in very sad and shocking similarity to the Megan Kanka murder in the USA noted previously, Britain was horrified by the abduction and murder of seven-year-old Sarah Payne by a known child molester Roy Whiting in Sussex on 1st July 2000. Whiting had a previous conviction for abduction and indecent assault on a schoolgirl in 1995 and had been sentenced to four years imprisonment but released on parole after serving two years and five months of that sentence in 1997. His release had been delayed by six months due to his refusal to participate in a Sex Offender Rehabilitation Programme. He was one of the first offenders to be placed on the Sex Offender Register on release from that sentence. After exhaustive police investigation, Whiting was arrested and sentenced to life imprisonment in December 1991 with a

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recommendation that he serves a minimum of fifty years in prison—later reduced to forty years on appeal.7 In the national furore following the trial, Sarah’s mother (also Sarah Payne) with the aid of the News of the World newspaper launched a campaign for legislation to enable parents concerned about their children’s safety in relation to a named individual to have controlled access to the Sex Offender Register to confirm or allay their anxiety. The potential for such access and its implications was trialled in four areas of England and Wales in September 2008, and subsequently extended to all areas as the Child Sex Offender Disclosure Scheme in 2011.8 Importantly for this work, the Sarah Payne murder in combination with that of James Bulger in 1993 (q.v.), fuelled a new wave of widespread public detestation of sexual offences and offenders, particularly in relation to children, accompanied by demands for ever harsher punishment in the courts on an indeterminate basis in the interests of public protection. It also caused considerable problems within the prisons estate where concern for the physical safety of sex offenders resulted in the need to provide on an increased basis for their segregated accommodation and regimes out of any contact with the mainstream custodial population. This emotive incident apart, other concerns and developments were focusing the attention of the government in relation to the criminal justice process as yet another General Election loomed on the horizon in mid-2001, and would confirm, or otherwise, the confidence of the nation in the New Labour administration and its policies. It was also a period in which a number of investigative studies into the entire criminal justice structure and its functioning were already under way. For the sake of simplicity in the discussion that follows, these studies and government papers are listed here in the chronological order of their eventual publication:

7

For a more detailed account of this murder see: http://en.wikipedia.org/wiki/Murder_of_ Sarah_Payne [Accessed 16 June 2019]. 8 The Scheme and its outcome became known as ‘Sarah’s Law’ in the criminological and legal literature thereafter.

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• Home Office, Setting the Boundaries—Reforming the Law on Sex Offences,London: Home Office, 2000; • Home Office, Review of the Criminal Courts in England and Wales, [The Auld Report], London: Home Office, 2001a; • Home Office, Criminal Justice: The Way Forward , CM 7074,London: The Stationery Office, 2001b; • Home Office Review of the Sentencing Framework, Making Punishments Work, [The Halliday Report], London: Home Office Communications Directorate, 2001c; • Home Office, Justice for All , CM 5563, London: The Stationery Office, 2002a; • Home Office, Protecting the Public, [White Paper], London: Home Office, 2002b; • Home Office, Justice for All: Responses to the Auld and Halliday Reports, London: Home Office, 2002c. However tempting it might appear to be to indulge in a detailed analysis of each and all of these sources which, taken together, characterised the New Labour crime control agenda in the early years of the new millennium, that is not the purpose of this work, and has in any case been admirably undertaken elsewhere (see Matravers and Hughes 2003, op. cit.: 51–79; Tonry 2003, op. cit., passim; Garland, 2001 at Chapters 6 and 7). The focus of this book is devoted to an understanding of the ways in which the outcomes of these initiatives and strategic policy documents impacted upon the operation of prisons in England and Wales. What does emerge from this plethora of Home Office sponsored projects is the fact that thegovernment had determined upon a course of action designed to satisfy a perceived public demand for increased measures of protection from the depredations of violent and sexual offenders. The latter, in particular, who accounted for less than 1 per cent of all recorded crime in England and Wales in 2002/3, had already been singled out for disproportionate punishment upon suppositions of ‘dangerousness’ entirely unrelated to the actual seriousness of their offences other than in a very small number of exceptional cases. Moreover, other than in reported cases of rape which had increased since 1987,

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much of which increase had been attributed to a greater level of willingness to report, particularly among complainants whose accounts did not match the ‘classic criteria of stranger rape’ and thus were unnecessary for the police to record (Harris and Grace 1999), sexual offending rates had fallen over a ten year period (Home Office 2002b, op. cit.). Insofar as sexual offences against children were concerned, it was an established fact that some 80 per cent of such offences took place in the home of the victim or the offender, and that the majority of child molesters were people known to their victims, in many cases fathers, stepfathers or other family members (Grubin 1998).9 The public threat level posed by such offences was therefore relatively low. From the viewpoint of Prison Service management and operation during this particular period, and of the work of the Probation Service as its counterpart in the non-custodial sector of the criminal justice process, there was a curious inconsistency in the governmental approach to the ‘tough on crime’ agenda. On the one hand, criminal justice statistics indicated that crime rates were falling consistently in Britain as in most of Western Europe, and thus less crime should have resulted in fewer convictions, fewer prison sentences and fewer prisoners (cf. Tonry 2003, op. cit.: 3). On the other hand, it seemed that public and media-inspired clamour for increased protection from, and reduction in, public risk from crime propelled the governments (both Conservative and later Labour) into a spiralling competition to be ‘toughest’ on crime and criminals: an agenda to which the courts responded in a complicit manner. Thus, crime decreased and the prison population increased in an entirely illogical manner which perpetuated the scourge of overcrowded, increasingly violent and drug-infested prisons. As will become evident later, prisons in such a state cannot hope to reduce crime and recidivism, and the cycle of despair becomes complete. Both Halliday and Auld had, according to their differing remits, delivered extensive, evidence-based and reasoned reports advocating overdue change and reform within the penal process. In particular in the case of the former, his insistence on the need to limit judicial discretion was 9

Here, see in particular the Sex Offenders Act 1997, the Review of Sex Offences Setting the Boundaries (Home Office 2000a) and the sex offences White Paper Protecting the Public (Home Office 2002b) cited above.

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closely related to the mandatory sentencing guidelines protocols that he perceived as being inimical to the reform process. Although the ‘custody plus’ prescription that he advanced would have eliminated sentences of between three and six months actual time spent in custody, he stopped short of proposing abolition of sentences of three months or less despite his recognition that such sentences were ‘an expensive way of making bad people worse’, and ultimately contributed considerably to prison overcrowding (cf. Home Office 1990, op. cit.: para. 2.7, 2001c, op. cit.). The sentencing guidelines issue was bound to prove contentious insofar as Halliday insisted that it could not succeed without the creation of a statutory body specifically tasked to define the guidelines and oversee their implementation. Such a body was ultimately identified as a ‘Sentencing Guidelines Council’ (SGC) in the White Paper (Home Office 2002b, op. cit.) and the Criminal Justice Bill (2002), but that brought into question the relationship that the body would have with the already established Sentencing Advisory Panel (SAP)10 and the Court of Appeal. Realising the sensitive nature of the issue, Halliday had proposed three options for the composition of the SGC: the first, the Court of Appeal in a different guise; the second, a body chaired by the Lord Chief Justice with a membership entirely of judges and magistrates; and the third (possibly a ‘straw model’), of an independent body of informed persons drawn from a wide range of professional interests in criminal justice matters. The White Paper, (perhaps in a placatory sense), proposed adoption of the second model which might keep the judiciary ‘on side’, but was not without its own inherent problems. Definition and drafting of guideline judgement advice and administrative rule-making is a specialised legal process which lies beyond the experience of most judges and magistrates who are required to apply the rules rather than devise them. The same is also true of the members of the Court of Appeal if it were to assume responsibility for what Halliday had in mind for the SGC. All in all, it was an unpromising situation for Parliament to decide upon since the third option offered no certainty that the necessary expertise would be 10 The SAP had been established in the Crime and Disorder Act 1998 to offer advice to the Court of Appeal in sentencing matters.

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available. However, in the event, none of the three options was destined to reach the status of legislation, since between the White Paper proposal and the Criminal Justice Bill drafting the government decided to back away from any substantive attempt to subject the guidelines issue to parliamentary debate. The Bill eventually included [in sections 153(1) and (4)] a provision that ‘the Council may from time to time consider whether to frame sentencing guidelines … which may be general in nature or limited to a particular category of offence or offender’. Auld had, inter alia, proposed a means of speeding up the delivery of justice, particularly in relation to sexual offences, through his ‘three tier’ concept of District Courts to reduce the delays and costs of Crown Court trials that was eminently sensible, but was bound to provoke some disquiet among the judiciary (Home Office 2001a, op. cit.).11 Between the two Reports, each of which displayed considerable wisdom and understanding of the problems being faced by the Prison and Probation Services on an operational basis, the principalrecommendations for strategic reform of the penal process were not entirely consistent with the perceived need of the government to be ‘tough on crime’ at all times and in every context of its legislative agenda. Indeed, such measures and initiatives as would ultimately lead to a reduction in the use of imprisonment and the prison population ran entirely counter to the punitive instincts of New Labour in relation to violent and sexual offences in particular. Since the General Election in 2001 had returned the government to power for a further five-year period and with a sizeable overall majority in the House of Commons, it was well placed to pursue its chosen agenda without undue opposition

11 The Auld recommendation in this respect was for a ‘three-tier’ trial system for sexual offences, the most serious of which would be tried in the Crown Courts (before a judge and jury), the ‘middle range’ of offences by a new District Division of courts (before a judge sitting with two lay assessors or magistrates) to deal with ‘triable either way’ offences where the sentence on conviction might exceed two years imprisonment, and less serious offences to be dealt with in the Magistrates’ Courts without the option for jury trial.

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or censure.12 Thus, Halliday was, effectively, laid gently to rest with Auld in a nearby grave. While the criminological world watched and waited, and those working within the justice process anxiously held their breath, the White Paper Protecting the Public (Home Office 2002b, op. cit.) passed into legislation as the Criminal Justice Act 2003 (CJA 2003) after much debate and parliamentary mauling. In the final section of this chapter, we shall examine the extent to which this piece of legislation had momentous implications for the future of the criminal justice process in England and Wales and its prisons in the years that followed.

CJA 2003—A Colossus of Ideological Obfuscation However one views the motivations of the New Labour government in compiling the structure and content of the vast and contentious portmanteaux document that comprised CJA 2003, it is difficult to conclude other than that it was a deliberately contrived exercise in political obfuscation. In among its 339 sections, 38 Schedules and more than 450 pages of text in the Stationery Office published version, were included a range of provisions so diffuse in nature as to defy identification of a consistent theme as the authors of the Blackstone’s Guide that accompanied the Act indicated so clearly (Taylor et al. 2004: x). At much the same time, The Criminal Justice Act 2003: A Practitioner’s Guide (Ward and Davies 2004) became available, and provided a selective and useful parallel commentary to that of Taylor et. al. (only 699 pages long in this instance—also including the Act itself ). In both cases, however, the sheer extent and diffuseness of the Act and its drafting evidently tested the patience and stamina of the authors to the limits of endurance. This leads the informed observer to speculate how many 12

In terms of the major Parties in the 7th June 2001 General Election, the distribution of the 659 seats in the House of Commons became: Labour 412 (−6); Conservative 166 (+1); Liberal Democrat 52 (+6); Scottish National Party 5 (−1); and Other Parties 24; giving the Labour Partyan overall majority of 165 seats. Losses and gains in brackets relate to the previous 1977 Election.

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of the parliamentarians in both Houses of Parliament actually read and considered the Act presented for their approval into legislation in any considerable detail—even if they could decipher and comprehend the implications of some of its more intractable provisions in the first place. It is not proposed to indulge here in a similar analysis and commentary on the CJA 2003 for the purposes of this work which is predominantly concerned with prisons, their practical functioning, and why they become prone to failure. This stated, however, the political behaviour of governments deeply affects strategic policy-making in relation to prisons and its operational outcomes, and therefore cannot be disregarded or ignored. What follows here, therefore, is a brief overview of those provisions within CJA 2003 that would inevitably affect the operation of prisons in England and Wales as a result of its legislationand implementation. Insofar as the custodial sentencing provisions for offenders were concerned (set out in Part 12 of CJA 2003 at Sections 142 et seq.) it was evident that the government had broadly accepted John Halliday’s prescription for a ‘Custody Plus’ split sentence between custody and community punishments, and had augmented this with arrangements for allied provisions for two further measures described as ‘Intermittent Custody’ and ‘Custody Minus’ respectively. The latter of these was, in effect, a re-cast version of the former Suspended Sentence in breach of which imprisonment could be imposed. The former (also dubbed ‘weekend imprisonment’) would require an offender thus sentenced to spend a specified number of days in custody over a defined period of weeks, while also being effectively subject to the conditions of a community order allowing him/her to retain employment or undertake vocational training while at large under Temporary Release conditions. Though one of the stated aims of these measures was to reduce the use of short-term imprisonment sentences of more than thirteen weeks but less than six months in prison custody, it left the issue of short sentences of less than three months unresolved. These and the range of existing community punishments with their smorgasbord array of conditional requirements left matters un-simplified but intact. However, in Section 154 of Part 2 of CJA 2003 dealing with ‘General limit on magistrates’ court’s power to impose imprisonment’ at (1) suddenly appears:

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‘A magistrates’ court does not have power to impose imprisonment for more than 12 months in respect of any one offence’. This implied that the former limit of six months for any one offence had been abandoned (see: Taylor et al. 2004, op. cit.: 364). Such, then, were the arrangements in CJA 2003 for sentencing powers in the Magistrates’ Courts of England and Wales post-2003, though it will be noted that no implementation dates were mentioned as to when they would be brought into use. The conditions for Early Release on Licence (EROL) from determinate sentences at the half-way point in the Criminal Justice Act 1991 (CJA 1991) also remained un-repealed which was, to many observers of the justice process, somewhat surprising, but might have been deliberate, considering the raft of punitive provisions for dealing with seriously violent and/or sexual offenders considered to be ‘dangerous’ and to which we shall shortly turn. Before doing so, however, it should be suggested that acceptance and implementation of the Custody Plus and Intermittent Custody proposals represented an extremely high-risk strategy for the government. Not only were these largely un-costed proposals13 which, if passed into legislation in CJA 2003, would have considerable resource implications for both the Prison and Probation Services. Though Custody Minus as a Suspended Sentence might have no significant additional cost implications for the courts or either Service, much would depend upon its uptake by the judiciary, and thus upon the workload of the Probation Service. Of equal concern foreseeably was the risk that if the measures were to fail to reduce the existing high levels of post-sentence recidivism and reconviction then identified by Halliday (2001c, op. cit.: 126: and see also Roberts and Smith (2003: 182–183) as running at some 60 per cent within two years of release from short custodial sentences of twelve months or less, then the entire package would become discredited by the media and the public. As matters then stood the pressures of workload on both Services and the extent of existing overcrowding in prisons meant that neither was in a position to accept any considerably increased 13

At least, there was at the time (2002–3) no published government information available (either in Halliday or elsewhere) to suggest that the implementation costs had been subjected to serious or documented consideration, and the Criminal Justice Bill 2002 made no reference to such costs.

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demand upon their operational capacity. Given the considerable scale of the fiscal investment that would have to have been made in their implementation, it is scarcely surprising that they remained un-activated during the years that followed.

Criminal Dangerousness and Its Punishment in CJA 2003 Extensive criminological research literature on the concept of criminal dangerousness reaches back into the 1970s and onwards towards the close of the Twentieth Century when it was almost abandoned due to the considerable methodological difficulties associated with predictive protocols and diagnostic criteria. Stated simply, those professionals who engaged in such research—mainly in the fields of psychiatry, criminology, psychology and mental health—failed to reach a consensus over key definitional issues, such as those relating to psychopathy and mental impairment, upon which reliable diagnostic and predictive assessments could be envisaged for criminal justice purposes.14 Based upon such a background, it was altogether surprising to discover that one of the key components of CJA 2003 and its sentencing provisions was the revival of the debate, in Chapter 5 (Dangerous Offenders) and Sections 224 to 236, focused upon criminal dangerousness with reference to serious violent and sexual offenders in particular.15 These two groups of offenders, together with those involved in serious drug trafficking, had already been targeted for stringent sentencing in New Labour’s mandatory minimum sentencing offensive described previously.16 For some inexplicable reason, the chapter did not commence with any explanation of what the term ‘criminal dangerousness’ was intended to 14

Here see, for instance, Kozol et al. (1972), Wenk et al. (1972), Monahan (1975), Bottoms (1977): 74, op. cit. and all cited in Cornwell (1989). 15 Here, it may be of considerable assistance to the reader to have access to the Blackstone Guide to CJA 2003 (Taylor et al. 2004, op. cit.) at Chapter 14, pp. 251–258 in understanding of the text of the Act at Chapter 5, Sections 224–236, pp. 398–402. 16 In the Crime (Sentences) Act 1997.

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imply for the purposes of the 2003 Act. Marginally different but important definitions had formerly been advanced in the Aarvold Committee Report 1973 (Aarvold 1973), in the Report of the Butler Committee (1975), and in that of the Scottish Council on Crime (1975). Though the Aarvold Committee were primarily concerned with problems of the release of mentally abnormal offenders, both Butler and the Council were more focused on increases in serious violent crime.17 Neither of the two latter definitions was particularly precise as Bottoms (1977, op. cit.: 74) pointed out, and ‘left considerable doubts as to whether the proposed new sentences would be consistently applied by the courts if they were ever to become law’ (Ibid.). The same criticism was undoubtedly the case in relation to the CJA 2003proposals as we shall now see. Chapter 5 of CJA 2003 began with a specification (in s.224) of those violent and sexual offences that would fall to be dealt with by the measures subsequently proposed. These offences were identified in Parts I and 2 of Schedule 15, 65 of them being violent offences (Part 1), and 153 of them sexual offences (Part 2) committed in England and Wales after commencement of the Act.18 Following Schedules 16 and 17 identified similar lists of offences applicable to offences committed in Scotland and Northern Ireland respectively. These became ‘specified offences’ for the purposes of CJA 2003. Section 225 of the Act provided for life sentences for public protection to be imposed on adult (18 years or older) offenders whose offences would (prior to the Act) have made them liable to be sentenced to life imprisonment, and where a further similar ‘specified’ offence or offences would, in the opinion of the court, pose a significant risk to the public of serious harm. However, in cases of serious offending which would not have attracted a life sentence, the court must impose an indeterminate sentence of imprisonment for public protection.19 Section 226 provided 17 The definition advanced by the Butler Committee was: ‘a propensity to cause serious physical injury or lasting psychological harm’ (Para. 4.10). The Scottish Council’s definition was: ‘the probability that he [the offender] will inflict serious and irremediable personal injury in the future’ (Para. 122) [Parenthesis mine]. 18 i.e. The date upon which the provisions of the 2003 Act would come into force, rather than the date [20th November 2003] that it became law. 19 Such sentences would therefore not qualify as ‘fixed term’ sentences attracting automatic release at the half-way point vide CJA (1991).

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broadly similar arrangements for offenders under the age of 18 years to be sentenced to detention for life or for public protection. Section 227 of the Act provided for adult offenders convicted of a violent or sexual specified offence, other than a serious offence, and the court considered that the commission of further such offences in the future would pose a significant risk to the public of serious harm, to be sentenced to an Extended Sentence of imprisonment. Such a sentence would be equal to the aggregate of the appropriate custodial term for the offence and an ‘extension period’ to be served under licence of sufficient duration considered by the court to protect the public from serious harm occasioned by him/her by commission of further specified offences. However, the extension period might not exceed five years in the case of a violent specified offence, or eight years in the case of a specified sexual offence. The term of an extended sentence must not exceed the maximum term permitted for the offence(s) committed. Section 228 provided for similar conditions of Extended Detention to be imposed on offenders under the age of 18 years convicted of violent or sexual specified offences. These sentences, subsequently referred to in the legal and criminological literature as the ISPP and ESPP respectively, applied only to the extensive list of specified offences of a violent and/or sexual nature specified in the Schedule 15 (Parts 1 and 2) to Chapter 5 of the 2003 Act and applicable in England and Wales. However, the ISPP sentence, being indeterminate, carried with it a tariff period in relation to the custodial period of the sentence after which release was to be subject to the approval of the Parole Board. The ESPP sentence, with its minimum duration of two years and a maximum of less than ten years imprisonment, carried a defined ‘custodial period’ of at least 12 months and an extended licence period of up to eight years. Release from the ESPP was also at the discretion of the Parole Board at any time between the half-way point of the custodial period and the custodial end date. These arrangements in particular will be seen subsequently to have caused considerable problems for the Prison and Probation Services, and also for the Parole Board, in the years following the implementation date of the sentences from 4th April 2004.

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It seems almost superfluous to note at this stage that the passage of such legislation in 2003/4 was, due to the extent of indeterminacy involved, inevitably bound to cause a sizeable increase in the already overcrowded prison population if it were to be implemented widely by the courts. This probability must have been recognised by the government in framing the legislation, but its pursuit of crime control was almost cynically disregarded. Meanwhile, other developments were also taking place to which we now turn in the closing section of this chapter.

The Aftermath of CJA 2003 While the full impact of the CJA 2003 legislation and its implications were being considered by the agencies of the criminal justice process (Courts, Prison and Probation Services),early in 2004 a further major Report commissioned by the Home Office Strategy Unit in 2003 became available on 6th January. It was compiled by Patrick Carter—a businessman and adviser to the government on criminal justice matters. With the title Managing Offenders, Reducing Crime: A New Approach (Home Office Strategy Unit 2003), it took a clearly focused and incisive approach to the major issues within the entire criminal justice process that contributed to the ongoing penal crisis in terms of sentencing in the courts, prison overcrowding, the morale state of the Probation Service, and the strategic preoccupation with systems management rather than with offenders and reducing recidivism. In particular, the Report called for the establishment of a ‘National Offender Management Service (NOMS) restructuring the Prison and Probation Services as a combined agency, and with a single Chief Executive ‘accountable to Ministers for punishing offenders and reducing recidivism’ (Ibid.: 5). At last, or so it seemed, an assessment of the crisis was presented that shifted its causes from specifically within prisons themselves to a wider discussion of the strategic management shortcomings of the entire criminal justice system. Carter’s analysis and prescriptions were pointedly critical of the extent of political mismanagement of the system, acknowledging that prisons were operating against

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impossible odds due to the sentencing ideology20 and behaviour of the courts. Furthermore, he noted that since the Criminal Justice & Court Services Act 2000 had created a National Probation Service (NPS), its closer relationship with the Prison Service within NOMS was not only necessary, but long overdue. Finally, for our purposes here, Carter pinpointed the need to divert low risk offenders away from the court system and punish them instead with more demanding community sentences incorporating wider use of reparation to victims of crime. This, he claimed, would ‘enable custody to be reserved for serious, dangerous and highly persistent offenders’ (Ibid.: 4). Faced with such a direct and critically penetrating Report from Carter (which it had commissioned), and having already committed to the CJA 2003 legislation, the government was placed in a difficult position by mid-2004. It could scarcely reverse its position on the ISPP and ESPP sentencing provisions due to be implemented from 4th April 2004 onwards (in respect of ‘specified offences’), but implementation of the NOMS recommendation was, at least, a face-saving resort which was accepted and set in place on 1st June of that year. In November 2004 a further and entirely independent Report was published, commissioned and funded by the Esmée Fairbairn Foundation (EFF 2004),21 dealing with the use of imprisonment and sentencing practices in the courts. The Report was, of course, published too late to provide other than a reflective commentary on the measures within CJA 2003, but was deeply critical of the strategic delivery of criminal justice by successive governments during the 1990s and into the new millennium. The Commission was headed by Lord Coulsfield, a widely respected Scottish judge who had recently retired, and who had a considerable understanding of the penal situation in England and Wales.

20

Particularly, in relation to the type of sentencing provisions such as those within CJA 2003 for the ISPP and ESPP measures, and unrestricted sentencing discretion which would be bound, in the foreseeable future, to exacerbate rather than relieve the problems of effective prison management (Ibid.: 4–5). 21 See Esmée Fairbairn Foundation, Crime, Courts and Confidence: Report of an Independent Inquiry into Alternatives to Prison, London: The Stationery Office, 2004 (November), [The Coulsfield Report].

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Though the Report was couched in sober and considered language, it amounted to a considerable indictment of the political mismanagement of the criminal justice process of England and Wales by successive governments during the 1990s, their neglect of evidence-based research and alternatives to imprisonment, and their failure to recognise the dysfunctional outcomes of short-term imprisonment in terms of prison overcrowding and increasing levels of recidivism. In its examination of alternatives to short-term custody, the Commission drew attention to the potential of Restorative Justice initiatives, reparation, and community involvementto reduce recidivism.22 Both of these Reports (and to an extent also those of Halliday and of Auld) emphatically shifted explanations of the penal crisis away from the’ orthodox’ account (see Cavadino and Dignan 1997, op. cit.: 9–19) which located it within the prison system, and towards the political mismanagement of the penal process: an account which this work entirely endorses.23 Though the main components of prison unrest and under-performance were correctly diagnosed in the ‘orthodox’ account (high prison numbers, overcrowding, understaffing, bad conditions, staff militancy, poor security, etc.), it was the failure of successive governments at ministerial level, and of the senior management of the Prison Service during the late 1980s and 1990s, to provide adequate resources to overcome these deficiencies that exacerbated the crisis. By way of a conclusion to this chapter, discussion of the iniquities of CJA 2003 would be incomplete without mention of a further strand of New Labour’s strategy to establish their criminal justice policies to the right of the Conservative opposition in parliament. This came in the form of their plan to levy a financial surcharge on all offenders convicted in the courts in addition to the sentences imposed upon them, whether custodial or non-custodial in effect. This initiative was not embodied 22

For a more comprehensive and detailed analysis of the Coulsfield Report, see: D.J. Cornwell, Doing Justice Better, Winchester: Waterside Press, 2007 at pp. 148–152. 23 The ‘orthodox’ account of the penal crisis was that which was most readily accepted by politicians, the mass media and in some reports (until Woolf and Tumim 1991, op. cit.) and academic circles during the 1990s. It conveniently presented the operational level of prison management as the ‘bad guys’ in the failure of prisons to maintain order and reduce reoffending when the conditions in which they had to manage prisons were entirely unfit for purpose.

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in the CJA 2003 legislation enacted in 2003, but was retrospectively incorporated within that Act by way of the Domestic Violence, Crime and Victims Act 2004 at section 14 of Part 2 which caused it to form Amendment Clauses 161A, 161B and 164 to CJA (2003).24 The intention was that the surcharge would become effective on or after 21st March 2007, and at that stage would be applicable only to offenders penalised by fines until a date to be fixed when it would be extended to all convicted offenders. The revenue from the surcharge was, it subsequently transpired, to accrue to a consolidated Victim and Witness General Fund, and thus it became known as the ‘Victim Surcharge’.25 Now, where, when and by whom the concept of surcharging was conceived is altogether unclear. On the one hand, it had the unfortunate connotation reminiscent of the ‘jailors fees’ practices of the Seventeenth Century,26 while on the other hand it might be viewed as scarcely more than an additional tax for the privilege of being convicted by a court in England and Wales. Either way, the initiative was conceptually flawed and was most certainly not ‘evidence-led’. How the surcharge was to be recovered from offenders sentenced to immediate custody remains a mystery, since prison officials have no powers to appropriate the earnings or private funds of prisoners for such a purpose. Moreover, since there was no evident intention that the ‘Fund’ would be used for victim compensation, it seemed altogether more likely that it would be used to fund a range of support services that would encourage victims to engage more willingly as prosecution witnesses in trial processes. Meanwhile, it will be noted that following the re-election of New Labour in June 2001 David Blunkett had become Home Secretary, which post he held until December 2004 when Charles Clarketook over that responsibility with a further General Election pending in mid-2005. 24

Sub-Section 161A concerned the ‘Duty of the Courts to order payment of a Surcharge on all convicted offenders; 161B defined the ‘Amount of the Surcharge’; and a new Section 164 identified how the Surcharge would be levied in conjunction with the imposition of Fines as a penalty. 25 For further explanation see Cornwell (2018, op. cit.: 85–89). 26 The practice by which unpaid jail-keepers demanded fees from their charges for accommodation, bedding, food, fuel, and for release to be paid by them or by those seeking their release.

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During 2004 and 2005 the main emphasis in governmental criminal justice activity moved away from prisons and probation once the three new and large PFI prisons at Liverpool (HMP Altcourse), Bridgend (HMP Parc) and Salford (HMP Forest Bank) were opened and operational. A new legislative focus was placed on dealing with serious and organised crime (see Appendix 1), and was set to continue into the foreseeable future. During this same period, however, an interesting and somewhat puzzling development in governmental thinking about crime reduction had emerged from 2001 onwards in relation to the worldwide movement promoting Restorative Justice (RJas a viable means of dealing effectively with many forms of less serious criminal offending—particularly those involving more youthful offenders.27 Though RJ does not directly concern prisons as matters stand, it is not beyond possibility that some prisons (or parts of prisons) might be set aside with special regimes to enable prisoners to work and make voluntary reparation to crime victims—whether their own or of crime more widely. Further reference to the RJ movement and the governmental response to it will be made in Chapter 5 which follows. The General Election of 5th May 2005 saw New Labour under Prime Minister Tony Blair re-elected for a third consecutive term, but with a reduced overall majority in the House of Commons of only 75, having lost ground to the Conservatives of 33 seats and 11 to the Liberal

27

Pioneering work on RJ has been undertaken particularly in North America, Australia, New Zealand and parts of Western Europe including the UK since the 1990s, and with considerable success. In 2001, the European Union Council Framework Decision of 15th March on the Standing of Victims in Criminal Proceedings (European Union 2001) required member states to implement measures for victim support in their domestic legislation by 2006. The response to this initiative was only partial, though in England and Wales it resulted in a succession of government documents relating to the Victim’s Charter 1990 (Home Office 1990, op. cit.), subsequently revised in the Victim’s Charter: A Statement of Standards for Victims of Crime (Home Office 1996). Readers seeking further elaboration of this development may find it in D.J. Cornwell, Doing Justice Better: The Politics of Restorative Justice, Winchester: Waterside Press, 2007, op. cit., at Chapters 3, 4 and 5 and passim, or alternatively, in D.J. Cornwell, The Penal Crisis and the Clapham Omnibus: Questions and Answers in Restorative Justice, Hook, Hampshire: Waterside Press, 2009 passim.

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Democratic Party. Though this set-back did not stem the flow of governmental reports and papers through 2005–2006,28 most of the legislation that passed through Parliament during that period was directed towards enhancing police powers and public protection (see Appendix 1). The purpose of this chapter and the one preceding it has been to provide a perspective on one of the most pivotal periods in the history of criminal justice process of England and Wales during the entire postWorld War 2 period of its existence. This account reflects the way in which the justice process as an entirety, and prisons as a central element of that process, was almost cynically manipulated by successive governments for ideological reasons and for the purposes of political advantage rather than the pursuit of justice. Having lived through the tumultuous events culminating in the notorious events at Strangeways Prison and elsewhere in 1990, strategic management lessons that could have been learned were either disregarded or ignored, leaving the prison system in an ever increasing state of chaos and confusion. This particular period was characterised by two specific developments in governmental thinking about crime and its causation which were conceptually flawed and erroneous: the first was that crime could be controlled by increasing the extent and severity of retributive punishment; the second was that mass incarceration of offenders was the most effective and efficient means of achieving crime control. When both failed, damaging many thousands of lives unnecessarily in the process, the ‘retreat’ was not sounded but the ‘charge’ was ordered instead: a situation strangely reminiscent of the Crimean War Battle of Balaclava in 1854 in which the British Cavalry was almost completely destroyed through a misunderstanding of the battle situation. Looking forwards, however, as 2007 approached strategic change was inevitable within the criminal justice process. How this was approached, and its outcomes, become the focus for consideration in Chapter 5.

28

Such as: Home Office, Rehabilitation of Prisoners, Cm. 6486, 2005a; Home Office, Rebuilding Lives—Supporting Victims of Crime, Cm. 6705, 2005b; Home Office, New Powers Against Organised and Financial Crime, Cm. 6875, 2006a; and Home Office, A Five Year Strategy for Protecting the Public and Reducing Re-Offending, Cm. 7247, 2006b.

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References Aarvold Committee. (1973) Report of the Review of Procedures for the Discharge and Supervision of Psychiatric Patients Subject to Special Restrictions, Cmnd. 5191, London: HMSO. Bottoms, A.E. (1977) ‘Reflections on the Renaissance of Dangerousness’, Howard Journal of Criminal Justice, vol. xvi(2): 70–95. Carter, P. (2003) Managing Offenders, Reducing Crime: A New Approach, London: Home Office Strategy Unit. Cavadino, M. and Dignan, J. (1997) The Penal System: An Introduction, [2nd Edition], London: Sage. Cornwell, D.J. (1989) Criminal Dangerousness and Its Punishment: Beyond the Phenomenological Illusion, D.Phil. Thesis, Department of Social Policy, University of York. Cornwell, D.J. (2018) Criminal Deterrence Theory: The History, Myths and Realities, Den Haag, NL: Eleven International Publishing. Esmée Fairbairn Foundation. (2004) Crime, Courts and Confidence: Report of an Independent Inquiry into Alternatives to Prison, [The Coulsfield Report], London: The Stationery Office. European Union. (2001) Council Framework Decision of 15th March on the Standing of Victims of Crime in Criminal Proceedings, [2001/220/JHA], Official Journal L 82, 22.3.2001, Brussels: European Union. Garland, D. (2001) The Culture of Control: Crime and Social Order in Contemporary Society, Oxford: Oxford University Press. Grubin, D. (1998) Sex Offending Against Children: Understanding the Risk, Police Research Series Paper 99, Home Office Research, Development and Statistics Directorate. Harris, J. and Grace, S. (1999) A Question of Evidence? Investigating and Prosecuting Rape in the 1990s, Home Office Research Study No. 196, London: Home Office. Home Office. (1990) Victim’s Charter 1990, London: Home Office. Home Office. (1996) Victim’s Charter: A Statement of Standards for Victims of Crime, London: Home Office. Home Office. (2002a) Justice for All , CM 5563, London: The Stationery Office. Home Office. (2002b) Protecting the Public, [White Paper], London: Home Office.

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Home Office. (2002c) Justice for All: Responses to the Auld and Halliday Reports, London: Home Office. Kozol, D., Boucher, R.J. and Garofalo, R.F. (1972) ‘The Diagnosis and Treatment of Dangerousness’, Crime and Delinquency, vol. 18: 371-392. Matravers, A. and Hughes, G.V. (2003) ‘Unprincipled Sentencing? The Policy Approach to Dangerous Sex Offenders’, in M. Tonry (ed.), Confronting Crime: Crime Control Policy Under New Labour, Cullompton, Devon: Willan Publishing, pp. 51-79. Monahan, J. (1975) ‘The Prediction of Violence’, in D. Chappell and J. Monahan (eds.), Violence and Criminal Justice, Lexington: D.C. Heath. Roberts, J. and Smith, M.E. (2003) ‘Custody Plus, Custody Minus’, in M. Tonry (ed.), Confronting Crime: Crime Control Under New Labour, Cullompton, Devon: Willan Publishing, pp. 182-210. Taylor, R., Wasik, M. and Leng, R. (2004) Blackstone’s Guide to the Criminal Justices Act 2003, Oxford: Oxford University Press. Tonry, M. (ed.) (2001) Penal Reform in Overcrowded Times, New York: Oxford University Press. Tonry, M. (ed.) (2003), Confronting Crime: Crime Control Under New Labour, Cullompton, Devon: Willan Publishing. Tonry, M. and Frase, R.S. (2001) Sentencing and Sanctions in Western Countries, New York: Oxford University Press. Ward, R. and Davies, O.M. (2004) The Criminal Justice Act 2003: A Practitioner’s Guide, Bristol: Jordan Publishing Company. Wenk, E., Robison, J. and Smith, G.W. (1972) ‘Can Violence be Predicted?’ Crime and Delinquency, vol. 18: 393- 402. Woolf, H. (LJ) and Tumim, S. (J) (1991) Prison Disturbances April 1990, Cm.1456, London: HMSO.

5 Penality and the Ministry of Justice Era 2007–2020

An Uncertain Beginning In the late Summer of 2006, Prime Minister Tony Blair announced that he would not lead New Labour into a further General Election, but declined to indicate when he would relinquish his position as Leader of the Party. In May of that year, Charles Clarke had been replaced by John Reid as Home Secretary, which post he was to hold until the end of June 2007. Blair eventually resigned on 10th May 2007 as Prime Minister and Party Leader, triggering a leadership election in which he had indicated that his preferred successor should be Gordon Brown (then Chancellor of the Exchequer). The leadership election was held by the National Executive Committee (NEC) in the following month for the party leadership and deputy leadership occasioned by the simultaneous resignation of John Prescott with Blair. The only other contender was John McDonnell who subsequently conceded defeat, the balance of nominations being 88.2 per cent in favour of Brown, and 11.8 per cent for McDonnell at a Special Conference of the NEC on 24th June 2007. Insofar as the prisons of England and Wales were concerned, the average daily population had risen sharply since 2003 and was fast © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_5

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approaching 82,000—an increase of over 16,500 on that a decade earlier. Even with the three new PFI prisons now fully operational (cf. Chapter 4: 59), the Prison Service was struggling to deal with the overcrowding situation and the impact of the CJA 2003 legislation for ISPPand ESPP sentences described previously. This situation was, however, far from new, because ever since the post-War years of the 1940s (and even during the immediate pre-War years of the 1930s), the status of the Prison Service within the Home Office and of its strategic direction had been matters of criticism and contention within and beyond Parliament.1 Even though the former Prison Commission (which had survived since 1877 until its abolition in 1963) had passed into history with the formation of the Prison Department of the Home Office, many of the subsequent Reports, Inquiries and Commissions previously cited in this work had been critical, in differing respects, of the relationship between Prison Service Headquarters in London and prison establishments throughout England and Wales.2 Indeed, many of the criticisms mentioned here from May (Home Office 1979, op. cit.) and onwards were concerned with the structure and operation of Prison Service Headquarters itself and within the Home Office for the management of prisons, with the over-arching bureaucracy of the Home Office, and with the lamentable climate of industrial relations which pervaded all levels of the Prison Service and obstructed necessary reform of working practices and innovation. Though the Headquarters structure was changed as a result of the May Report recommendations in 1979 and subsequently, and the regional structure abandoned in the Fresh Start initiative of 1987,3 the impact of ‘managerialism’ from the late 1980s on the management of public sector 1 For a more comprehensive description of this situation see: Home Office, [The May Committee Report], Chapter 2, 1979, op. cit.: 21–24. 2 These included, inter alia, Mountbatten (1966), Radzinowicz (1968), CofE Board 1978, A-PPAG (1980), Hennessy (1987), Woolf and Tumim (1991), Woodcock (1994), Learmont (1995), Halliday (2001b), Coulsfield (2004), Carter (2003, 2007), all previously cited in this volume. 3 Contrary to one of May’s central recommendations that the process of delegation of operational authority to Regional Directors should be speeded up and extended, and that they ‘should encourage individualism and indeed experiment by governors within their own establishments’ (1979, op. cit.: 279).

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agencies (cf. Chapter 3: 35 supra) effectively stifled progress towards significant delegation of operational management authority from the centre to prisons during the 1990s and onwards. Such remained the situation until in 2006–2007 when events within the criminal jus tice process moved in an entirely different direction, though with some prior indicators that change was afoot. Here, it has to be recalled that on 27 June 2007, John Reid who had succeeded Charles Clarke as Home Secretary in May 2006 was replaced by Jacquie Smith in that role in Prime Minister Gordon Brown’s first cabinet following the resignation of Tony Blair. As we shall now see, the decision to form the Ministry of Justice on 9 May 2007 brought Charles Falconer, then Secretary of State for Constitutional Affairs, into the post of Lord Chancellor and Secretary of State for Justice—a post he was to hold for a little over one month before he was succeeded by Jack Straw on 23 June 2007.

Creation of the Ministry of Justice 2007 With the benefit of hindsight, it is evident that plans were being drawn up from 2003 and onwards to change the criminal justice structure of England and Wales to an unprecedented extent. In June 2003 it was announced that a new Department for Constitutional Affairs (DCA) was to be created to replace the existing Lord Chancellor’s Department with a wider remit within the justice process.4 In February 2004 the Constitutional Reform Bill was introduced in the House of Lords which, after considerable debate5 and detailed amendment, became the Constitutional Reform Act in March 2005. This Act created the Supreme Court

4

This was eventually to include HM Courts Service, the Tribunals Service, The Legal Services Commission, the Office of the Official Solicitor & Public Trustee, the Public Guardianship Office, HM Land Registry and (after 2005) Coroners Courts as Agencies of the DCA. 5 Particularly in relation to the title and role of the Lord Chancellor, one of the most ancient Offices of State dating back to the Norman Conquest of Britain, and in conjunction with the role of Keeper of the Great Seal of the British Monarchy.

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with a view to removing the Law Lords6 from the House of Lords by 2009 among other lesser measures. After several months of considerable media speculation during the Winter of 2006–2007, the then Prime Minister Tony Blair announced on 29th March 2007 in Parliament a major ‘Machinery of Government’ change affecting the Home Office and the DCA.7 The Home Office’s responsibilities would be concentrated oncounter-terrorism, policing, asylum and immigration, and a new Ministry of Justice (MoJ) would be created to take over the responsibilities of the DCA and the criminal justice functions of the Home Office and its agencies—mainly the National Offender Management Service (NOMS) including HM Prison Service and the National Probation Service(NPS). The new Ministry would therefore have responsibility not only for constitutional matters, civil and administrative justice, the courts and legal aid, but would also ‘house’ the Office for Criminal Justice Reform reporting trilaterally to the Justice Secretary, the Home Secretary and the Attorney General. It would be led by the Lord Chancelloras Secretary of State for Justice.8 The announcement was made on the Friday of the week in which Parliament rose for the Easter recess, thus causing considerable concern in both Houses about the lack of time for debate on the issues that it would inevitably raise, and the short period of time before the MoJwould become operational. It subsequently transpired that the new MoJ would commence its work as soon as 9 May 2007, and it will be recalled that Patrick Carter in his Report of 2003 had recommended the formation of a NOMS, too late (as was also the Coulsfield Report) for it to be taken into account in the Criminal Justice Act 2003discussed previously in this work. Quite how the new NOMS, formed in 2004, would work as a single Agency combining both the Prison and Probation Services 6

Otherwise known as the Lords of Appeal in Ordinary. HC Deb, 29 March 2007, cols 133-5WS. 8 Here, see: House of Commons Constitutional Affairs Committee, The Creation of the Ministry of Justice, [Sixth Report of Session 2006–2007], HC 466: 3, London: HMSO, 26 July 2007, and also: Cabinet Office, Machinery of Government: Security and Counter-Terrorism, and the Criminal Justice System, 29 March 2007 [http://www.gov.cabinetoffice.gov.uk] which accompanied the announcement by Prime Minister Blair. 7

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remained a matter of some conjecture,particularly since there was no commonality of management structure between the two in relation to the delivery of their services below the national headquarters level. Its first Chief Executive was Martin Narey, Director General of the Prison Service from 2004–2005, followed by Helen Edwards—a former Chief Executive of NACRO (1999–2004), and Director General of the Home Office Communities Group (2004– 2005). The response of the Judiciary to the Blair announcement of 29th March 2007 was both simultaneous and critically focused. On the same day, the Lord Chief Justice (Lord Phillips of Worth Matravers) made a public statement that it raised ‘important issues of principle’, and that ‘structures are required which will prevent the additional responsibilities taken over by the new ministry [of Justice] interfering with or damaging the independent administration and proper funding of the court service’, and that ‘structural safeguards must be put in place to protect the due and independent administration of justice.9 Here, the Lord Chief Justice was evidently drawing attention to the issues that arose in a similar situation in June 2003 in which a disputed Machinery of Government change in relation to the office and responsibilities of the Lord Chancellor arose due to a ministerial reshuffle in which it was suddenly announced that the post of Lord Chancellor was to be abolished in its entirety, and the Lord Chancellor’s Department replaced by the new Department of Constitutional Affairs, headed by a Secretary of State for Constitutional Affairs. In that instance, the issue was resolved by lengthy negotiation between the (then) Lord Chancellor and the (then) Lord Chief Justice Lord Woolf who agreed what became known as the Concordat: Constitutional Reform: The Lord Chancellor’s Judiciary Related Functions: Proposals which laid down detailed rules on the relationship between the Lord Chancellor as Secretary of State for Constitutional Affairs and the judiciary.10 The Concordat became the basis for the Constitutional Reform Act 2005 and placed the agreed relationship between the Secretary of

9 Announcement of a Ministry of Justice—Statement by the Lord Chief Justice, 29 March 2007 [http://www.judiciary.gov.uk] quoted in HC 466: 3. 10 Here, see: DCA, Constitutional Reform: Reforming the Office of the Lord Chancellor, CP 13/03, September 2003.

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State and the judiciary on a statutory basis with effect from 3rd April 2006. In concluding its assessment of how both the 2003 and 2007 Machinery of Government measures were handled by the New Labour government with minimal consultation or parliamentary debate, the House of Commons Constitutional Affairs Committee made the following concluding observations: 21. The process leading to the creation of the Ministry of Justice leaves the impression that the Government has failed to learn the crucial lessons from the way changes to the Lord Chancellor’s office were announced and subsequently effected between 2003 and 2005. As in 2003, the Government has manifestly underestimated the significance of the Machinery of Government changes announced on 29th March 2007. 22. Lack of sufficient consultation prior to the initial, Governmentprompted, public proposal and the announcement of the creation of the Ministry of Justice has led to a highly undesirable public conflict between the senior judiciary and the previous Lord Chancellor. This conflict appeared to have been exacerbated by an underestimation of, and insensitivity for, the concerns of the judiciary which changes to the role of the Lord Chancellor may raise. Had the lessons of 2003 been learned, we believe such a situation could have been avoided. (House of Commons, HC 466 2007: 16)

To which criticism might appropriately be added similar concern in relation to the extent and implications of some of the measures within the legislative proposals in CJA 2003, particularly in relation to the implementation of proposals for the ISPP and ESPP sentencing of offenders considered to be dangerous in terms of public risk described earlier in this chapter and in Chapter 4 (cf. 59 supra).

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Home Office

43 Police Forces

41 Police & Crime Commissioners

HM Courts & tTribunals Service (HM C&TS) #

National Crime Agency

Official Solicitor & Public Trustee #

Legal Services Commission #

Public Guardianship Office #

HM Land Registry #

Attorney General’s Office

Ministry of Justice

80 Crown Courts #

Crown Prosecution Service

HM Prison & Probation Service (HMPPS)

Serious Fraud Office

HM Prison Service (HMPS)

National Probation Service (NPS)

The Parole Board (NGPB)*

122 Prison Establishments

7 Probation Regions

Youth Justice Board (NDPB)**

200 Magistrates’ Courts #

Residual CRCs

Fig. 5.1 Ministry of Justice and Associated Ministries—Organisation Structure (as at August 2020)11 (Notes *The Parole Board is a Non-Governmental Public Body sponsored by the Ministry of Justice; **The Youth Justice Board is a NonDepartmental Public Body; # Denotes former Department for Constitutional Affairs [DCA] agencies)

11 It should be noted here that from 2004 until 2017 the Prison and Probation Services were separately managed within NOMS until the formation of HMPPS.

Carter Redivivus and the State of the Prisons 2007–2008 While the newly formed MoJ was settling into its new accommodation and organisation from 9th May 2007 (see Fig. 5.1),12 Patrick Carter, now ennobled as Lord Carter of Coles, was asked to undertake a Review of the Prison System in England and Wales. His terms of reference focused on ‘options for improving the balance between the supply of prison places and the demand for them, and to make recommendations on how this could be achieved’ (Carter 2007).13

12

Figure 5.1 data are extracted from National Audit Office, A Short Guide to the Ministry of Justice, London: NAO, 2017. 13 The Terms of Reference quoted here are taken from the Covering Letter of his eventual Report published on 5th December 2007 and addressed to the Prime Minister, the Chancellor of the Exchequer, and the Lord Chancellor and Secretary of State for Justice.

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In the clear and concise Executive Summary of his Report delivered in December 2007, Lord Carter noted that since June 1995 the prison population had increased by 60 per cent or more than 30,000 to 81,547 on 16th November 2007 and was projected to continue to rise to reach more than 100,000 by 2014 (MoJ, Statistical Bulletin: Prison Population Projections 2007–2014, August 2007). The existing building programme had increased the capacity of prisons from 53,000 in 1995 to 81,000 in November 2007, and was expected to provide 89,000 places by 2014. However, then current prison population projections indicated that these increases in capacity were unlikely to meet the likely growth in demand for places in the short, medium and long-term which could ‘outstrip the supply by as much as 13,000 places’. Moreover, the existing ‘stop-gap’ measures involving emergency use of police and court cells, the End of Custody Licence scheme (ECL), and the rapid building programme, while increasing capacity, did not improve efficiencies in the prison system (Ibid.: 2). Lord Carter’s analysis of what he termed the ‘drivers’ of the increasing prison population was incisive and detailed (Ibid.: 4–9). Summarily, he identified these as: • Changes in public attitudes to crime and the political climate; • Changes to legislation and the sentencing framework; • More offenders brought to justice, increased custody rates, and longer sentence lengths; • Greater focus on enforcement of sentences; and, • Greater awareness of risk, and greater political prominence of public protection. Noting that the period since 1995 had been characterised by an overall reduction in total crime of some 42 per cent, and of re-offending of 5.8 per cent, there had, nevertheless, been a 5 per cent increase in the number of offenders sentenced in all courts. Since 1995 there had been 66 pieces of criminal justice legislation, all with sentencing implications, many of which have been previously discussed in this work, but which, taken together, resulted an increase of 21 per cent in the number of immediate custodial sentences imposed at all courts, and of 47 per cent

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in non-custodial penalties over the same period. In particular, since the introduction of the indeterminate ISPP and ESPP sentences for public protection in CJA 2003 and implemented in 2004 onwards, by the end of October 2007 there were 3,400 offenders already serving such sentences which were predicted to rise to as many as 11,500 by 2014 (Home Office, RDS NOMS Statistical Bulletin 03/07/2007; Ibid.: 7). Taking into account the then existing (2007) planned expansion of prison capacity of 8,500 places up to 2012, the Report concluded that a further 6,500 places would be needed in the same time frame to meet and reduce the existing pressures on the prison system. Further, that this increase should include the construction of a 2,500 place state of the art ‘Titan’ prison for long-term serious offenders. This expansion should be augmented in the longer term by the provision of a further two such prisons to enable the continued use of existing inefficient and decrepit prison capacity to be eliminated. Finally, for this part of the discussion, the Carter Report stressed the need for improvement in the operational and financial control of the prison system, and the ‘long-overdue “modernisation” of the HM Prison Service workforce in order to address the costly, outdated and inflexible pay and grading structure that currently existed’. Insofar as sentencing was concerned, the Report also recommended the setting up of a working group to ‘consider the advantages, disadvantages and feasibility of a structured sentencing framework and permanent Sentencing Commission, and report to the Lord Chancellor and the Lord Chief Justice by summer 2008’ (Ibid.: 3). Apart from one or two awkward differences in the calculation of the extent of the requirement for new prison places by 2014 between the Carter recommendations and existing Home Office statistical projections, and the government’s almost immediate acceptance of, and response to them,14 it was announced that a building programme for 10,500 prison places to be delivered by 2014 would beundertaken, in addition to the previous commitment to 9,500 additional places 14

See: House of Commons, Hansard, 5 December 2007, columns 827–832, the full text of which is available as: Prisons (Carter Review) at: https://www.publications.parliament.uk/ cm200708/cmhansard.cm071205.debtext/71205-0004htm [Accessed 26/07/2020]; and House of Commons written answers, 6 February 2008; column 1193.

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made on 19 June 2007.15 The expansion would include three new 2,500 place Titan prisons in London, the West Midlands and the North-West of England in which areas demand for places considerably outstripped supply, following a consultation process announced by the Prime Minister Gordon Brown on 30 January 2008.These measures were designed to provide the Prison Service with 96,000 places by 2014, including the closure of some old and ineffective prisons in the process.16 Lord Carter’s proposal for Titan prisons was justified, in his opinion, by ‘economies of scale’ that would derive from concentrating large numbers of prisoners in single establishments, and his belief that such prisons would offer ‘state of the art’ conditions, security and regime delivery at economical cost per place and with improved chances of reducing re-offending and crime. That much stated, he admitted that there were ‘operational challenges’ associated with large prisons including the possibility of large scale disturbances, meeting the needs of specific prisoner groups the management complexities associated with a large staff complement, and the challenges of managing a number of potentially different prisoner segments on the same site (Ibid.: 38–39). Wider response to the Carter proposals among parliamentary Select Committees, penal reform groups, professional bodies representing criminal justice practitioners, HM Inspectorates of Prisons and Probation, universities and the responsible media was almost universally critical, particularly in respect of the Titan prison proposals.17 The consultation process on the Carter proposals was launched on 5 June 2008 with the Consultation Paper (MoJ, NOMS, Titan Prisons, CP 10/08), a complex document forty-six pages in length, requiring responses by 28 August 2008.18 The tone of the document made it evident that the leading question was not whether the Titan concept was either conceptually or practically appropriate, but rather that it was going to be implemented and the means of implementation were the only issues to be addressed 15

House of Lords written answers, 19 June 2007; column 97. See fn. 12 above, and Prison Reform Trust, Titan Prisons: A Gigantic Mistake, London: Prison Reform Trust, 5 June 2008: 2. 17 These bodies are usefully summarised in Prison Reform Trust (2008), op. cit.: 4–5. 18 The Consultation Paper is available at: http://www.justice.org.uk/ under the title Titan Prisons CP10/08. London: Ministry of Justice, 2008 [Accessed 25 July 2020]. 16

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by those responding to its Questionnaire. We return to discussion of this development in Part Two of this work. Two further main recommendations within Lord Carter’s Review of Prisons remain to be considered here. The first of these concerned his proposal that a permanent Sentencing Commission for England and Wales should be established, based on the existing Sentencing Guidelines Council, and with judicial leadership, to improve the transparency, predictability and consistency of sentencing. The Commission would offer the judiciary clearer and simpler guidance to prevent ‘sentence inflation’, advise ministers of the impact of new legislation on the prison population, and promote better public understanding of sentencing policy and practice. The second recommendation concerned the need for greater efficiency in the way that operations and headquarters’ overheads were structured and managed at HM Prison Service Headquarters. As to the former of these recommendations, in his response to the Carter Report on 5 December 2007,19 the Justice Secretary Jack Straw stated (col. 829) that the government accepted Lord Carter’s proposal for a Working Group to be established ‘to consider the advantages, disadvantages and feasibility of such a sentencing commission’. In January 2008, it was announced that a Working Group would be set up under the chairmanship of Lord Justice Gage to consider the potential for a structured sentencing framework and a permanent sentencing commission. We shall return to the outcomes of these deliberations subsequently in this chapter. In relation to the latter recommendation by Lord Carter, no mention of it was made by the Justice Secretary in his statement of 5 December 2007, although as was noted in Chapter 4 (at pp. 59 supra) the proposal for the creation of NOMS had featured prominently in Carter’s earlier Report (Carter 2003, op. cit.), and was subsequently implemented in 2004. This, however, did not affect the archaic nature of the structure and working environment of the Prison Service Headquarters in London, enmeshed as it was and it still is in the almost unassailable Civil Service procedural, hierarchical and traditional procedures designed to shield Ministers from political embarrassment or compromise. Since 19

See fn. 12 above.

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2007/2008 there have been significant changes to the organisational structure of that Headquarters and of the Prison Service which will become evident in the final part of this chapter. In mid-2008 the average daily prison population had risen to 82,100, and there were already 3,400 offenders serving indeterminate ISPP and ESPP sentences consequent upon the legislation in CJA 2003, and implemented from 4 April 2004.20 This escalation represented an increase of 16,800 or 13.8 per cent from the level a decade earlier when the New Labour programme against serious violent, sexual and drug crime had begun in earnest. Almost 70 per cent of all the (then) existing prisons in England and Wales were overcrowded to a greater or lesser extent, and levels of violence and assaultive behaviour, drug use and selfharming within prisons began to show a significant increase on an annual basis.

Into the Doldrums: 2008–2010 Against the backdrop of the scenario indicated above, during 2008 reactions to the Carter proposal for a Sentencing Commission emerged from a number of directions within the criminal justice process. On the favourable side of the argument, an independent Report written by Mike Hough and Jessica Jacobson and compiled jointly by the Institute for Criminal Policy Research, Kings College London, the Esmée Fairbairn Foundation and the Prison Reform Trust (Hough and Jacobson 2008) concluded as follows. We see the government proposals for a commission as an opportunity that may not present itself again for some time to come. It is clear to most knowledgeable commentators – including politicians themselves – that something has gone wrong with our sentencing policy over the last fifteen years. The problem is complex, but at its heart is a political problem, in that politicians have trapped themselves in a counterproductive competition to demonstrate to the electorate – or to the media – how much 20

Ministry of Justice, Offender Management Caseload Statistics: Sentencing Statistics 2006/7 , London: RDS NOMS, 2007.

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tougher they are on crime than the competition. Establishing a sentencing commission could prove a first step in helping politicians find a way out of this trap. (Ibid.: 39)21

The five main conclusions of the Report were couched in moderate terms in relation to the existing Sentencing Advisory Panel (SAP) and the Sentencing Guidelines Council (SGC) which, it was acknowledged, had wide support—particularly among sentencing officials who might not welcome the imposition of a unitary Sentencing Commission as a replacement. Though not specifically stated within the text of the Report, its tenor was evidently sensitive to the issue of judicial discretion, but also focused on giving the Commission a wider research and monitoring role22 combined with that described as ‘community engagement’, education and consultation in relation to sentencing policies and practices. On the critical side of the debate, in mid-May 2008 the 650-strong Council of HM Circuit Judges published its response to the Consultation Paper (CP10/08, op. cit., supra) in respect of the proposal to establish a Working Group on a Sentencing Commission proposed by Lord Carter and accepted by the government on 5 December 2007 (HC Hansard 5 December 2007: col. 828). The response emphatically rejected the concept of, or need for, such a Commission. In answering the questionnaire appended to the Consultation Paper the Council, in its 21 page response, refuted almost every one of the proposals, concluding that such a Commission would serve no useful purpose that the existing SAP and SGC could not fulfil satisfactorily, and without undue interference with judicial discretion in sentencing practice.23 Evidently, Their 21

Here, see; M. Hough and Jacobson, J., Creating a Sentencing Commission for England and Wales: An Opportunity to Address the Prisons Crisis, London: Prison Reform Trust, 2008 (undated). The full text of this document is available at: http://image.guardian.co.uk/sys-files/ Society/documents/2008/07/07/PRTreport.pdf [Accessed 30 July 2020]. 22 Specifically with regard to ‘compliance with sentencing guidelines and their impact on sentencing practices; contributing to government forecasts of prison population trends; assessing the impact of proposed reforms to sentencing policy; and conducting original research into views of sentencers and public attitudes to sentencing’ (Ibid.: 39–40). 23 Council of HM Circuit Judges, A Sentencing Commission for England and Wales: Observations of the Council of HM Circuit Judges, London, 20 May 2008. For the full text of the Council of Circuit Judges Response to the Consultation Questionnaire

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Honours were content with the existing sentencing arrangements, and were not prepared to countenance any further extent of legislative intervention in such matters. In the midst of all this activity, the Criminal Justice and Immigration Act 2008 passed through Parliament including the first official indications that the provisions in CJA 2003 for indeterminate ESPP sentences had resulted in the Parole Board being completely overloaded in its duty to review tariff- serving prisoners for release having served the ‘custodial term’ of their sentences originally imposed by the court.24 The 2008 Act s. 25 rescinded the indeterminate nature of ESPP sentences, making automatic release on expiry of the custodial term mandatory, and the sentence thus determinate. This was the first major incursion into the illconceived legislation for long-term public protection within CJA 2003 whichhad produced profoundly dysfunctional additional overcrowding consequences throughout the criminal justice process.25 Others were to follow as will be seen later. Also in early 2008, HM Courts Service Framework Document (Cm. 7350) was laid before Parliament as an Agreement between the Lord Chancellor and the Lord Chief Justice for the effective governance of Her Majesty’s Court Service, and the ‘preservation of the due and independent administration of justice’ in England and Wales. As an independent Executive Agency of the MoJ, the Service and its CEO would have operational responsibility for the administration of all courts except the Supreme Court, answerable to its own Board including three judicial members—one being the Senior Presiding Judge. This responsibility was, at the time, vested in the Lord Chancellor vide The Courts Act 2003 (s.1) and the Tribunals, Courts and Enforcement Act 2007 (s. 39). see: http://judiciary.uk/wp_content/uploads/JCO/Documents/Consultations/response_cocj_sent encing%20_commission.pdf [Accessed 27 July 2020]. 24 ESPP sentences within CJA 2003 consisted in a ‘custodial period’ (or tariff ) followed by an ‘extension period’ on Release Licence of up to five years for specified violent offences and eight years for sexual offences if parole was granted. Delays in reviewing these cases by the Parole Board resulted in many prisoners being retained in prison custody well beyond the expiry of their custodial periods, thus adding to the overcrowding situation in prisons in England and Wales. 25 The need for this measure was entirely predictable. Between the end of 2004 and June 2008, the number of prisoners serving indeterminate ISPP, ESPP and Life sentences had increased from around 5,500 to over 11,000 (Ministry of Justice 2016).

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From the viewpoint of prisons, this Document was potentially of importance since much of the daily workload in the Local Prisons of England and Wales is involved in the procedures for ensuring that prisoners held on remand (un-convicted, convicted but un-sentenced) are produced at Magistrates’ and Crown Courts to meet court listings in a timely and reliable manner. Not infrequently, prisoners listed for trial are taken to courts only to find that their hearings have been delayed due to previously listed trials having been extended or otherwise not completed. Though such delays are largely unavoidable, there is potential for more streamlined liaison between courts and prisons to limit the necessity for, and cost of wasted journeys, and also the prolonged confinement of prisoners in court cells awaiting their appearance in court. By this stage in the tenure of the New Labour administration in parliament and in the country, daily life in the prisons was becoming increasingly uncertain. From 2009 and onwards the size and shape of the Prison Service began to undergo significant change. An increasing number of serious offenders sentenced by the courts were serving indeterminate ISPP and ESPP sentences, new prisons were under construction but who would manage them remained uncertain. Which of the older and cost-inefficient prisons were to be closed and when remained unclear, and a further General Election was due in mid-2010 at the latest. The new Ministry of Justice was becoming established, but the future relationship of the Prison and Probation Services within NOMS was a matter of speculation since neither contemplated a marriage with any relish, and some form of enforced cohabitation seemed an inevitable permanent compromise between the two reluctant partners. This period of strategic penological uncertainty extended into the academic world in Britain, elsewhere in Western Europe, and almost worldwide by the end of the first decade of the new millennium. Interest in the potential of Restorative Justice to provide an avenue for progress, formerly vibrant and hopeful during the early 2000s, had waned to a considerable extent due to government reluctance in many countries to finance genuine research other than on a superficial level to assess its operational viability, largely due to political risk-aversion in relation to criticism of its being a ‘soft on crime’ option. The decision of the government in England and Wales to attempt to ‘build its way out of the penal

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crisis’ as Lord Carter had recommended effectively ensured a period of stalemate within the prisons in which order, safety and control would be difficult priorities to maintain indefinitely.

2010–2020: A Decade of ‘Busy Going Nowhere’26 After a brief lull in the volume of criminal justice legislative proposals and provisions during the previous decade, and as another General Election became due in May 2010, the justice process in England and Wales faced a very uncertain future. Extensive and unaffordable sums of funding from the national Exchequer had been committed to the expansion of the prisons estate by 2014 to accommodate the still rising average daily prison population, a sizeable proportion of which was now serving sentences of longer duration in custody than was the case a decade earlier (Ministry of Justice 2016: 2 and passim). In mid-2008 that population had reached 82,100—an increase of 13 per cent on the level in 1998 as was noted earlier. The General Election held in May 2010 brought a Conservative government back into office, butwith a majority of only 48 seats over New Labour (306:258) in the 650 seats House of Commons.27 Thus, in order to secure an overall majority it became necessary for the Conservatives, now led by David Cameron as Prime Minister, to form a coalition government with the Liberal Democrats led by Nick Clegg who became Deputy Prime Minister. In this new government, Kenneth Clarke was appointed Lord Chancellor and Justice Secretary in place of Jack Straw,28 and brought to that office a much more moderate and constructive

26

Reference to words in a famous song by Bing Crosby et al., ‘Busy Doing Nothing’, in the Film A Connecticut Yankee in King Arthur’s Court, © Warner Chappell Music Inc., 1949. 27 The distribution of seats by Parties was: Conservative 306; Labour 258; Liberal Democrats 57; Other Parties and Speaker 29 = 650 seats in the House of Commons (House of Commons Library, Research Paper 10/36 , 2010: 22–26). 28 Here it will be recalled that Kenneth Clarke had formerly been Home Secretary from 1992–3 in the Conservative government led by John Major.

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approach towards the continuing prison crisis than had any of his New Labour predecessors. In proposing a ‘rehabilitation revolution’ later in the same year, Clarke published a Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders (Ministry of Justice 2010) which contained, for consultation, proposals for strictly limiting the use of short-term custody, improving prison regimes, more demanding community sentences, and genuine assistancethrough training to enable offenders to avoid recidivism with greater emphasis on bridging the custody: community gap. His proposals met with opposition from an influential group of MPs within his own party, and from some cabinet colleagues anxious not to lose electoral credibility, and also from the National Association of Probation Officers (NAPO) claiming that the proposals would lead to further ‘privatisation’ of their role, and from certain sections of the media asserting an increase in ‘public risk’, and that the government was becoming ‘soft on crime’. As a result, the Green Paper was withdrawn and never reached the stage of parliamentary debate as a White Paper. In September 2012 Kenneth Clarke was replaced by Chris Grayling, a more ‘traditionalist’ politician, whose public stance was disposed towards maintenance of the status quo in relation to imprisonment. However, at that time legislation in the form of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (s.124) was before Parliament, abandoning, inter alia, the original ISPP and ESPP provisions of CJA 2003, and was enacted in May of that year.29 These sentences were replaced by a new Extended Determinate Sentence (EDS) for offenders convicted of serious sexual or violent crimes defined in Section 124 of the Act.30 The EDS included no automatic release provision at the ‘half-way point’ of the custodial term imposed by the court, which was to be followed by an extended licence period of five-year duration for violent, and eight years 29 The reader will recall here (from p. 43 supra), that the indeterminate ESPP sentence enacted in CJA 2003 had previously been amended to become a determinate sentence in the Criminal Justice and Immigration Act 2008, s25. 30 The original ESPP legislation in Part 12 of CJA 2003 as subsequently amended in the 2008 Act (see: fn. 26 above) was re- amended by inclusion of a new CJA 2003 s.226A to reflect the EDS sentence.

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for sexual offenders. Release from an EDS sentence after expiry of the custodial term was to be at the discretion of theParole Board. In tandem with these legislative measures, and following the return of the Conservative Party to power in 2010, the government determined upon a stringent fiscal strategy of reduction in publicexpenditure across all sectors of the national economy. The Comprehensive Spending Review 2010 required NOMS to have made £229 m in operational savings in 2011–2012, £475 m by 2012–2013, £749 m by 2013– 2014 and £898m by 2014–2015 (NOMS Business Plan 2014–2015, London: NOMS). During this period the public sector prisons delivered £263 m in savings as its part of the overall NOMS reductions. Between 31 March 2010 and June 2014 the number of Full-Time Equivalent (FTE) Staff employed in the public sector prisons fell from 45,080 to 32,550—a factor of 28 per cent —while the average daily prison population continued to rise to its peak level of 86,500 in 2012 before reducing marginally thereafter (Ministry of Justice 2014, op. cit.).31 As a further part of this overall retrenchment in public service costs, the programme of prison closures planned with the previous government’s acceptance of the Carter Report (2007) was implemented from 2011 onwards, and by the end of 2013 seventeen prison establishments had closed permanently though in a few instances sites had been retained for re-development as part of the building programme.32 In addition, two further public sector prisons (Birmingham33 and Lowdham Grange) were transferred to the private sector in 2011 on a contracted out or PFI basis. By way of a diversion, in 2012 the Council of Europe issued Directive 2012/29/EU, Minimum Standards on the Rights, Support and Protection of Victims of Crime, requiring member states to incorporate its provisions into their domestic legislation by 16 November 2015. The 31

Ministry of Justice, NOMS, Business Plan 2014–2015, London: NOMS, Table A1.2, 2014. These prisons were Ashwell, Brockhill, Lancaster Castle, Latchmere House and Morton Hall in 2011; Wellinborough in 2012; and Blundeston, Bullwood Hall, Camp Hill, Canterbury, Dorchester, Gloucester, Kingston, Northallerton, Reading, Shepton Mallet and Shrewsbury all in 2013. 33 HMP Birmingham was contracted out to G4S in April 2011 on a 15.5 year contract, but was taken back into public sector management in August 2018 on a ‘step-in’ basis to improve its performance. 32

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document was followed by a guidance document to assist compliance and enactment (European Commission, DG Justice 2013—Ref: Ares [2013] 3,763,804–19/12/2013). In combination, these two documents had considerable legal, financial and structural implications for the status of victims in criminal proceedings, access to mediation procedures, reparation, and for Restorative Justice-based interventions in both the custodial and non-custodial sectors of corrections. However, in October 2012 the government of the UK negotiated an opt-out derogation agreement with the EU in matters relating to legal provisions (unless opting in on a voluntary basis became preferable), effective from 1 December 2014. By this means, compliance with former Framework Decisions and subsequent EU Directives became optional and a matter of national decision in terms of compliance. Here, it will be noted that in the aftermath of CJA 2003, the government of England and Wales had ‘gone cold’ on its previously expressed interest in RJ and its potential for diversion of low risk and less serious offenders from the courts process in favour of mediation and reparation (cf. Home Office 2003, 2005a, b, c). Balancing the closures of prisons between 2011 and 2013 noted above, during the same period five new prisons had opened bringing 6,063 additional prison places into use.34 One other prison, HMP Wolds in East Yorkshire originally opened on a contracted out basis in 1991 to Group4, was brought back under public sector management when its contract expired in 2013 and was subsequently merged with nearby HMP Everthorpe to form HMP Humber. However, in spite of all the closures, mergers and new prisons opening, and abandonment of the ISPP and ESPP provisions of CJA 2003 from 2012, the average daily prison population in mid-2019 was to stand at 82,710, and the overall capacity of the prisons estate remained approximately the same as it had been in 2009–2010 (Institute for Government 2019: 4). 34 These prisons were HMPs Bronzefield (557 places) and Thameside (1,232 places) opened on PFI contracts; Northumberland (1,348 places), Oakwood (2,016 places), and Berwyn (910 places but partially opened) on a contracted out basis. The figures in parenthesis reflect Operational Capacities rather than Certified Normal Accommodation (CNA) levels of occupation. HMP Northumberland was originally opened as a public sector prison in 2011, but was taken over by the private sector company G4S on a contracted out basis in 2013.

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In May 2013, a notion almost as bizarre as that of the surcharging of persons convicted in the courts (cf. CJA 2003 at pp. 35–36 supra)) was advanced in the White Paper Transforming Rehabilitation: A Strategy for Reform (Ministry of Justice 2013). The government proposed, apparently without any extent of consultation or evaluation, to outsource the supervision of ‘low and medium’ offenders including those released from custody to what were described as Community Rehabilitation Companies (CRCs) established by the private and charitable sectors. It was intended that their work would replace that done by existing Probation Trusts in England and Wales. In addition, it was proposed that these CRCs would have responsibility for the supervision of the rehabilitation of offenders serving short-term prison sentences. A separate public sector National Probation Service was to be established to manage the supervision of medium and high risk offenders. Legislation was passed in the Offender Rehabilitation Act 2014 to enable changes to the statutory basis for offender supervision to support the proposed reforms. Over the course of 2013–2014, the Ministry of Justice established twenty-one geographical Contract Package Areas within England and Wales, and devised a contractual framework and bidding process by which contracts for each area might be let to a CRC. In June 2014, the staffs of existing Probation Trusts were allocated to either the new National Probation Service, or to the notional CRC that was to assume control of offenders in the Trust Area. The intention was that the latter staff would be transferred under the existing Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).35 The bidding process closed and contracts were let in December 2014 to be effective from February 2015. With this single piece of hastily assembled legislation the entire structure and ethos of the Probation Service first established in the Probation of Offenders Act 1907, and only placed on a national basis in 2004, was modified to a significant extent. At the time of the legislation it was altogether unclear how the status, experience and qualifications of non-Probation Service staff in-sourced into CRCs would be assured and 35 Transfer of Employment regulations apply to both the outsourcing and in-sourcing of employees on a transfer basis—see: http://www.cipd.co.uk/Images/7697-a-guide-to-tupe-transf ers-web-tcm18-44310.pdf [Accessed 07/08/20].

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supervised, or how their accredited access to prisons would be acceptable. Only that the contractual terms for CRC operation would be on a five-year—and presumably renewable—basis once their performance had been assessed according to criteria that were also largely undefined. The Act also provided that offenders convicted in the courts and sentenced to periods of custody of more than a single day would be subject to supervision in the community for up to twelve months. Quite how this additional workload requirement would be undertaken by the National Probation Service and the CRCs became a matter of widespread speculation within and beyond the criminal justice process. The considerable cost of this turbulent development sat strangely at odds with the restrictive effects of the Comprehensive Spending Review of 2010 and onwards unless or until it could be demonstrated that the operating costs, enhanced efficiency and savings deriving from the CRC legislation were of a significant order. Further turbulence on a much wider governmental level was, however imminent when a further General Election was held in May 2015. The 2015 Election saw the Conservative Party led by David Cameron returned to office with an increased majority over New Labour, but with a heavy loss of Liberal Democrat seats (57 in 2010 reduced to 8), and a significant gain to the Scottish National Party (SNP) of fifty seats from its 2010 level of six. This left the Conservative Party with a slim overall majority of only twelve seats in the House of Commons without the former coalition with the Liberal Democrats that had existed since 2010.36 In his new Cabinet, David Cameron replaced Chris Grayling by Michael Gove as Justice Secretary, which post he held until David Cameron resigned in July 2016 and Theresa May was elected Leader in his place. In her first Cabinet, she appointed Elizabeth Truss as Justice Secretary,which office she filled for only a year until the ill-judged General Election in June 2017. However, on 3rd November 2016, an Oral Statement was presented in Parliament by Elizabeth Truss pledging extensive reforms within the criminal justice system including the recruitment 36

The result of the 2015 General Election was: Conservative 331 (+25); Labour 232 (−26); Scottish Nationalist 56 (+50); Liberal Democrat 8 (−49); Other Parties and Speaker 23 (−6); = 650 seats. Figures in parenthesis denote changes from 2010.

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of an additional 2,500 prison officers by 2018. This Statement was subsequently published in the White Paper Prison Safety and Reform in November 2016.37 On 8th February 2017, Elizabeth Truss confirmed in a Written Statement to Parliament that the central pillar of the Ministry of Justice—NOMS—was to be replaced by the formation of Her Majesty’s Prison and Probation Service (HMPPS) from 1st April as an Executive Agency of the Ministry of Justice (HCWS 468 of 8/2/17, Ministry of Justice). The result of the electoral debacle in June 2017 was to leave the Conservative government with thirteen fewer seats, New Labour with thirty more, the SNP with twenty-one less, and the Liberal Democrats with a gain of two.38 This Election outcome placed the government in a perilous situation in the House of Commons in mid-2017. The Conservative Party had a majority of only 9 seats over a combined potential opposition of New Labour, SNP and the Liberal Democrats. It was, therefore, reliant upon the support of the Democratic Unionist Party (holding 9 seats), Plaid Cymru (4 seats), and the traditional absence of the seven Sinn Fein Party MPs who declined to take up their seats in the London Parliament, for any meaningful working majority. In terms of criminal justice legislation, therefore, the government would have to exercise extreme caution in bringing any contentious legislative provisions before Parliament in the months immediately following, and during which Prime Minister May faced the task of negotiating the UK scheduled exit date of 29 March 2019 from the European Union.39 Following upon the 2017 General Election, Theresa May appointed David Lidington as Justice Secretary in her re-shuffled Cabinet. He held this post until 8th January 2018 when he was replaced by David Gauke. In late July following his appointment, Gauke announced that the

37 See: Ministry of Justice, Prison Safety and Reform, (White Paper), Cm. 9350, London: Ministry of Justice, 2016b. 38 By comparison with the 2015 General Election, the 2017 Election resulted in the following disposition of Parties in the House of Commons: Conservatives 318 (−13); Labour 262 (+30); SNP 35 (−21); Liberal Democrat 12 (+4), Others and Speaker 23 (No Change); = 650 seats. 39 This date was subsequently delayed on two successive occasions until the negotiations with the EU were finally concluded in late December 2020.

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contract agreements negotiated with the eight service providing organisations for the operation of the twenty-one CRCs under the £3.7 billion ‘Transforming Rehabilitation’ initiative of 2015 were to be terminated two years early in 2020 at a cost of £170 million, due to the failure of the CRCs to deliver the supervisory service originally expected of them. The £170 million cost included £110 million owed to the government by the CRCs for contractual failures or under-performance, but the CRCs would be allowed to re-invest to sustain their work until their contracts were terminated. Thereafter, any private sector CRCs (or successor entities) as might be retained would be re-aligned to the eleven re-organised Probation Service Regions, subject to a consultation process to be held during 2018–2019. The Consultation Paper was issued on 27th July 2018 and closed on 21st September 2018, and the government’s response Strengthening Probation, Building Confidence, was published in May 2019 (Ministry of Justice, CP93 2019 [May]). The document provided a lengthy exposition on why the Transforming Rehabilitation initiative of 2013–2014 had miscarried so dramatically and expensively, short of acknowledging that it had been too hastily conceived and implemented (cf. p. 53 supra). Subsequently, at paragraphs 37 et seq., the MoJsummarised its future approach to the provision of integrated probation services (including a new-style partnership between the re-shaped public sector Probation Service Regions and private sector providers of Unpaid Work and Accredited Programmes). No specific mention was made of how the nature of the new relationship within HMPPS in relation to the ‘throughcare’ of offenders would work, or how the recommendation for sentencing reform to significantly reduce the use of short-term imprisonment would be approached with the judiciary.40 Understandably, in view of all of this governmental disturbance and the re-organisation of the Prison and Probation Services at the strategic level to form HMPPS from April 2017 onwards, the day to day operational situation within the prisons attracted little attention even though

40

Such is to suggest that the implementation of more robust and demanding Community Penalties might persuade the judiciary to make lesser use of immediate short-term custody if it could be shown that these were more effective in reducing recidivism.

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in mid-2018 the average daily prison population had reached 83,430 in May (HC Briefing Paper 23 July 2018: 3). As if all of this disruption were not enough at the highest levels of government in England and Wales, in July 2019 Prime Minister Theresa May resigned as Leader of the Conservative Party causing a Leadership Election from which Boris Johnson emerged as Leader and Prime Minister. In his re-shaped government, Robert Buckland—a former Prisons Minister—was appointed to succeed David Gauke, bringing to a total of seven the number of Conservative Justice Secretaries since the Party took office in 2010, and nine since the Ministry of Justice was formed in March 2007. Given the slim majority his Party held in parliament, Johnson determined to call a further General Election on 12th December 2019, and his Party was returned to power with an increased overall majority of 80 seats in the House of Commons.41

Looking Ahead: Conclusions from Part One Although the year 2020 will long be remembered for the Coronavirus Pandemic (COVID 19) with its huge loss of life throughout the world, restrictions on travel and personal movement both international and within national boundaries, school, churches, business and entertainment closures and the like, survival has been the main priority of humankind within every nation. New and unfamiliar rules on personal behaviour and relationships have had to be observed in order to safeguard lives and limit the spread of the disease to every extent possible. Whether or not, when the statistics eventually emerge for 2020, there will be seen to have occurred a significant decrease in actual and reported crime in England and Wales will be a matter of considerable interest. This work is primarily about prisons within a context of a criminal justice process in its entirety since 1945. As has emerged in the preceding chapters, the operation of prisons cannot be viewed in isolation since the

41

In actual fact this majority amounted to one of 87 seats since the seven Sinn Fein MPs elected declined to take their seats in the Westminster Parliament.

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factors that dictate the nature of daily life in prisons lie to a considerable extent beyond the control of prisons themselves, and of those who manage them. This is why the all too readily accepted ‘orthodox account’ of the prisons crisis that was developed during the 1980s and 1990s was so widely erroneous.42 But what other explanation could have been credibly advanced? Many prisons at that time were of Victorian origin, located in enclosed city or town centre urban sites, or war-time military camps adapted to create prison facilities intended for short-term occupation, and with relatively low levels of security provision. Lack of access to night-time sanitation was widespread, and prisoners were increasingly ‘doubled-up’ in cells designed for single occupancy, and with insufficient day-time regime activities to occupy them purposefully. Small wonder, then, that many prisons became the squalid, filthy and insanitary places so frequently criticised by their (then) Boards of Visitors, and observed upon in the successive Reports of HM Inspectorate of Prisons. The serious disorder and disturbances in prisons in England and Wales during the 1980s, culminating in the Strangeways Riot of April 1990, caused massive destruction and damage to the prisons estate and loss of prison places. Only then did the government, prompted by the Report of L. J. Woolf and J. StephenTumim (1991, op. cit.) comprehend and attempt to meet the extent of remedial action that would be necessary to restore public confidence and order within the prisons (cf. Chapter 3 supra). However, the disruption caused in many prisons to hastily build additional houseblocks was considerable, as was the process in many of the older prisons of taking entire landings or Wings out of use to install integral sanitation by taking out the middle one of each three cells to convert it into a shared lavatory and ablution facility. The latter measure caused a significant loss of cellular accommodation, especially in the Local and Category ‘C’ Training Prisons which were already among the most overcrowded establishments in the prisons estate, and particularly at a time when additional prison capacity was so urgently needed. The more contemporary account of the operation of the criminal justice process under the New Labour administration from 1997 42

Since, as we have seen in Chapters 1 and 2, that particular account located the cause of the crisis within the prisons themselves rather than in the circumstances of the wider context in which they were constrained to operate. See: Cavadino and Dignan (1997, op. cit.: 9–19).

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onwards in Chapter 4 provides an altogether different perspective on what was then described as the ‘prisons crisis’. It is suggestive of some form of ideological ‘Turf War’ between the two main parties in parliament to be perceived as ‘toughest on crime’, and with its origin in the ‘Prison Works’ declaration of Michael Howard in October 1993. The concept of prevention through the development of constructive and skills-enhancing programmes—in both the custodial and non-custodial sectors of sanctions—was effectively abandoned in favour of increasingly punitive measures conceived to control crime, and with retribution and deterrence restored and elevated to the primary purposes of criminal punishment.More offenders would be imprisoned, more prisons built to house them, and their removal from social circulation for longer periods would ensure public protection from their depredations. CJA 2003 was specifically designed to secure these outcomes against the sage advice of Auld (2001a), Halliday (2001b), and later Coulsfield (2004), but bolstered subsequently by the Report of Patrick Carter (2003), which paved the way to the formation of NOMSin 2004 and the Ministry of Justice in 2007 with a fast-increasing prison population (cf. Chapter 4: 59 supra). This chapter has recorded how a differently disrupted pattern of events unfolded within the criminal justice process after 2007, and until the present day. It bears no repetition or further summary here, save to indicate where matters currently stand as the following paper compiled by Ardi Janjeva43 and released under the auspices of the Royal United Services Institution (RUSI) asserts: The prison system in England and Wales is in crisis. Self-harm in prisons is at a record high, with worrying violence over the past 12 months. The National Probation Service is struggling to provide adequate rehabilitation and community supervision services to offenders post-release, with staff shortages meaning that most staff are failing to meet their weekly caseload targets. The government has now made it a priority to provide thousands more prison places. But unless substantial resources are also 43

Ardi Janjeva was a Research Analyst in organised crime and policing at the RUSI when the Paper was published. It is available at: http://www.printfriendly.com/p/g/A5NPXJ [Accessed 18/7/2020].

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invested in safety and the services available to offenders post-release, these measures will do little more than place thousands into a dangerous and violent environment, with little prospect of rehabilitationor reform. On 30 January, the Ministry of Justice released new ‘safety in custody’ statistics covering deaths, self-harm and assaults in the prison system. The number of individuals self-harming in prison in the 12 months to 30 September 2019 [was] 12,740 – the highest recorded figure. In that period there were 61,461 self-harm incidents (a rate of 742 per thousand prisoners), up 16% from the previous twelve months, and also a new record high. In female establishments, these figures are exceptionally shocking: a rate of 3007 incidents per 1000 prisoners represents an increase of 18% in the last 12 months. Most concerning of all, in the ‘youth estate’ – 15-18- year olds in Young Offender Institutions and all 15-17-year olds in Youth Prisons – there was a 93% increase in self-harm incidents in the 12 months to September 2019 (from 551 to 1,062 incidents). Incidents requiring hospital attendance increased from 2.5% in the previous 12 months to 4.8% in the 12 months to September 2019. (Janjeva 2020: 1–2)

This paper did also mention the very considerable increase in assaultive and violent behaviour in the prisons between 2013 and 2019, but dealt with this phenomenon in global terms rather than separated into prisoner on prisoner and prisoner on staff categories, and the extent of seriousness within each. In fact, during that period, the rate of less serious assaults rose from around 180 per thousand prisoners to a level of 400; the rate of serious assaults rose from a lower level of around 150 per thousand prisoners to a record high of around 460. Total assaults on prison staff increased from some 3,266 in 2013 of which 359 were classified as serious, to a level of 10,213 in 2018 of which 995 were of a serious nature (Ministry of Justice 2019 [December]; Prison Reform Trust 2019 [Summer]: 4). As this chapter closes, it was announced in June 2020 that four additional new prisons are to be built in England and Wales over the next six years, the first adjacent to HMP Full Sutton in East Yorkshire, another in North-West England, and two more in the South East of the country at sites yet to be decided (Gov UK, Ministry of Justice Press

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Release, 28th June 2020).44 These prisons will provide 10,000 places in addition to those previously announced in 2018/19 at Wellingborough (Northamptonshire) and Glen Parva (Leicestershire). However, the entire account provided in Chapters 1 to 4 raises a number of central issues and questions that require critical examination in Part Two of this work. Summarily, these concerns: • How the nature and style of the strategic management and leadership of HM Prison and Probation Service (HMPPS) in the 2020s and beyond can be made more effective in delivering the purposes of criminal justice and crime reduction; • The extent of commitment of government to eliminate both the overcrowding of prisons andcasework overload within HMPPS through legislation as a primary objective of essential criminal justice reform; • How the historically dysfunctional climate of industrial relations at the national and local levels within the Prison Service in particular might be transformed into a positive and constructive joint enterprise for progress; • The extent to which the hitherto disparate professional roles of the Prison and Probation Services can be merged into one of genuine common purpose on a strategic and an operational basis, and how this might be achieved in practice; • The desirability of giving Prison Governors a considerably enhanced extent of delegated authority and autonomy to govern their establishment to deliver its role in the specific circumstances of its age, condition, location, regime facilities, staffing levels, etc.; • What measures now need to be taken to restore order, discipline and control in prisons toeliminate drug trafficking, contraband and mobile phones, and reduce assaultive behaviour and other causes of self-harming behaviour within the prison population. • The recent (June 2020) decision to build a further four new large 2,250 place prisons at an estimated cost of £2.5 billion could be questioned on the grounds of necessity if existing and already committed 44 See: Gov.UK, Four New Prisons Boost Rehabilitation and Support Economy, of 28 June 2020. Text available from the Gov.UK Ministry of Justice website at: https://www.gov.uk/government/ news/four-new-prisons-boost-rehabilitation-and-support-economy [Accessed17/7/2020].

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spending to provide 10,000 additional places were to be combined with abandonment of short-term custodial sentencing to eliminate overcrowding to CNA levels. Is such behaviour consistent with Carter’s (2007) prescription for ‘sustainable use of prison custody’ and value for money then accepted by government? • Since 2000, successive governments have vacillated over and retreated from incorporating Restorative and Reparative Justice practices within mainstream criminal justice in England and Wales. Given the worldwide acceptance of the value of such practices in reducing crime and recidivism, and in enhancing victim support and satisfaction, can this reluctance now be justified? • Viewed dispassionately, and in relation to the criminal justice situation prevailing in most neighbouring democracies within Western Europe, England & Wales and Scotland maintain disproportionately higher levels of imprisonment per hundred thousand members of their populations. With high levels of re-offending and re-conviction within twelve months of release from prison custody, and the high per capita annual cost of prison places, is this situation reasonable in times of national economic uncertainty? These, and a number of associated matters deriving from them, become the focus for discussion in Part Two of this book.

References Advisory Council on the Penal System (ACPS). (1968) The Regime for LongTerm Prisoners in Conditions of Maximum Security, [The Radzinowicz Report], London: HMSO. All-Party Penal Affairs Group. (1980) Too Many Prisoners, London and Chichester: Barry Rose (Publishers) Ltd. Carter of Coles (Lord). (2007) Securing the Future: Proposals for the Efficient and Sustainable Use of Custody in England and Wales, London: House of Lords, (December). Carter, P. (2003) Managing Offenders, Reducing Crime: A New Approach, London: Home Office Strategy Unit.

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Cavadino, M. and Dignan, J. (1997) The Penal System: An Introduction, [2nd Edition], London: Sage. Church of England Board for Social Responsibility. (1978) Prisons and Prisoners in England Today, London: CIO Publishing. Esmée Fairbairn Foundation. (2004) Crime, Courts and Confidence: Report of an Independent Inquiry into Alternatives to Prison, [The Coulsfield Report], London: The Stationery Office. European Commission. (2013) Rights of the Victim, [DG Justice Ref: Ares (2013) 3763804-19/12/2013], Brussels: European Commission. Gov.UK. (2020) Four New Prisons Boost Rehabilitation and Support Economy, London: Ministry of Justice, 2020 (June), available at: https://www.gov. uk/government/news/four-new-prisons-boost-rehabilitation-and-supporteconomy. London: Ministry of Justice [Accessed 17/7/2020]. Hennessy, Sir J. (1987) Report of Her Majesty’s Chief Inspector of Prisons for England and Wales into the Prison Disturbances in Prison Establishments in England Between 29 April and 2 May 1986 , London: HMSO. Home Office. (1966) Report of the Inquiry into Prison Escapes and Security by Admiral of the Fleet, the Earl Mountbatten of Burma, Cmnd. 3175, London: HMSO. Home Office. (1979) Committee of Inquiry into the United Kingdom Prison Services—Report, Cmnd. 7673, [The May Report], London: HMSO. Home Office. (2001a) Review of the Criminal Courts in England and Wales, [The Auld Report], London: Home Office. Home Office. (2001b) Review of the Sentencing Framework, Making Punishments Work, [The Halliday Report], London: Home Office Communications Directorate. Home Office. (2003a) A New Deal for Victims and Witnesses: National Strategy to Deliver Improved Services, London: Home Office. Home Office. (2005b) Victim’s Rights, London: Home Office. Home Office. (2005c) Code of Practice for Victims of Crime, London: Home Office. Home Office. (2005d) Rebuilding Lives—Supporting Victims of Crime, Cm. 6705, London: Home Office. Home Office. (2007) RDS NOMS Statistical Bulletin 03/07 , London: Home Office. Hough, M. and Jacobson, J. (2008) Creating a Sentencing Commission for England and Wales: An Opportunity to Address the Prisons Crisis, London: Prison Reform Trust et al.

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House of Commons. (2007) Prisons (Carter Review), Hansard, 5 December 2007, vol. 468, col.827–832. Full text also available at: https://www.public ations.parliament.uk/cm200708/cmhansard.cm071205.debtext/71205-000 4htm [Accessed 26/07/2020]. Institute for Government. (2019) Performance Tracker—Prisons, London: Institute for Government, (November), available at: http:www/instituteforgovernment.org.uk/ouv-work/performance_tracker [Accessed 12 11/2019]. Janjeva, A. (2020) England and Wales’ Prison System is in Crisis, London: RUSI, (July). Full text Paper available at: https://www.printfriendly.com/p/ g/A5NPXJ [Accessed 18/7/2020]. Learmont, Gen. Sir J. (1995) Review of Prison Security in England and Wales and the Escape from Parkhurst Prison on Tuesday 3rd January1995, Cm 3020, London: HMSO. Ministry of Justice. (2010) Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders, [Green Paper], London: Ministry of Justice. Ministry of Justice. (2014) NOMS Business Plan 2014–2015, London: Ministry of Justice. Ministry of Justice. (2016) Story of the Prison Population 1993–2016 , London: Ministry of Justice. Ministry of Justice. (2019) Safety in Custody Quarterly Update to December 2018, Table 2, London: Ministry of Justice. Prison Reform Trust. (2008) Titan Prisons: A Gigantic Mistake, London: Prison Reform Trust, (June). Prison Reform Trust. (2019) ‘Safety in Prisons’, in Prison: The Facts, London: Prison Reform Trust, (Summer). Woodcock, Sir J. (1994) Report of the Enquiry of the Escape of Six Prisoners From the Special Security Unit at Whitemoor Prison, Cambridgeshire on 9th September 1994, Cm 2741, London: The Home Office. Woolf, H. (LJ) and Tumim, S. (J) (1991) Prison Disturbances April 1990, Cm.1456, London: HMSO.

Part II A Vision for the Prisons of the Future

6 Strategic Management of Prisons: Structure and Style

Introduction to Part Two Since its earliest formation in the Prison Act 1877, the Prison Service of England and Wales, from 1952 under the control of the Prison Commission,1 has been structurally ‘re-branded’ on no less than six different occasions. The Prison Commission was abolished and replaced by a Prisons Board in 1963 when the Service was merged as the Prison Department within the Home Office, and subsequently re-organised following upon the publication of the May Report (Home Office 1979, op. cit.) and the ‘Fresh Start’ initiative of 1987. In 2004 it became part of the newly formed National Offender Management Service (NOMS) as had been recommended in the Carter Report (Carter 2003, op. cit.), and in 2007 became a key component of the Ministry of Justice formed in that year. Finally, in 2019 in an amalgamation with the National Probation Service (NPS), it became HM Prison and Probation Service (HMPPS) in which form it presently remains. 1

The Prison Act 1952 provided for up to five Prison Commissioners to be appointed to assist the Secretary of State in the regulation and inspection of prisons in England and Wales. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_6

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This brief history belies the changing nature of the life of the Prison Service during the post-World War 2 period recorded in the preceding chapters of this book. The causes of this turbulence are deeply embedded not only within the strategic and operational management of the Prison Service itself over that period, but also in the functioning (and some would also claim malfunctioning) of the wider criminal justice process as an essential and crisis-prone public service within England and Wales since the 1980s. The Prison Commission previously mentioned was a small, elite and aloof body of political appointees chaired by one of its own members, and accountable directly to the Home Secretary and Parliament. Technically, it appointed Prison Governors who were accountable to it for the management of their prisons and reported to the Commission on an annual basis until 1963 when the Prisons Board was established to control the Prison Department of the Home Office. This particular development was to have a profound effect upon the management of prisons during the following decades in accordance with the rules, procedures and protocols of the Civil Service within the Home Office. Although an initially small number of former prison governors were appointed to posts within the Headquarters of the Prison Department in subsequent years, most of its senior management grades including that of Director General were professional civil servants, at least until the late 1980s. It was during the 1980s that the conditions and control within the prisons of England and Wales began to deteriorate seriously and evidence signs of impending crisis. Comparisons with the operation of other criminal justice systems within Western Europe over the same period and contemporarily can be superficially interesting, but of limited assistance in understanding the underlying causes of the penal situation in England and Wales (and Scotland) except for the fact that imprisonment has evidently been imposed excessively in recent decades (see Table 6.1).2 The table does, however, show that in 2020, rates of imprisonment relevant to the size of national populations almost throughout Western Europe fell significantly during 2 Such is to suggest in comparable rates per hundred thousand of national populations within the countries indicated in Table 6.1 (opposite).

(149) (140) (124) (125) (98) (95) (101) (105) (79) (63) (77) (61) (61) (60) (53)

135 133 124 108 95 95 89 87 74 71 69 63 61 60 53

(8,126) (83,329) (58,457) (12,789) (8,692) (10,883) (60,769) (70,818) (3,950) (3,635) (63,851) (10,464) (6,210) (3,190) (2,910)

7,418 79,433 58,642 11,158 8,471 11,853 53,619 58,695 3,687 4,125 57,600 10,887 6,210 3,207 2,910

2020

(2019)

(2019)

2020

Average Daily Prison Population

Rate per 100 K Population 5.46 59.70 47.17 10.26 8.60 11.46 60.24 67.64 4.98 5.80 83.12 17.11 10.92 5.33 5.52

National Population (Millions) 92.9 105.6 80.0 84.9 95.7 120.6 106.1 96.9 84.3 102.7 78.7 74.4 96.5 87.7 101.1

Occupancy Rate % (Note 1)

Downward Downward Downward Upward Downward Upward Level Level Level

Downward Downward Level Downward Downward

Trend 2019–2020

Source Extracted and Compiled from Fair, H. and Walmsley, R., World Prison Brief, 14th Edn, Europe, London: ICPR, 2020 Available at http://www.icpr.org.uk/theme/prisons-and-use-imprisonment/world-prison-brief [Accessed 01/10/2020] Note 1—Nationally reported leves of occupancy of official accommodation capacity

Scotland England & Wales Spain Portugal Austria Belgium Italy France Republic of Ireland Denmark Germany Netherlands Sweden Norway Finland

Country

Table 6.1 Comparative imprisonment rates—Western Europe 2019–20 (Select)

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the onset of the Covid-19 pandemic. This has been attributed to the fact that fewer court trials have been held during lockdown conditions, and many low-level offenders have been dealt with by alternative forms of sanctions other than imprisonment (House of Commons Library 2020a, b: 2; Fair and Walmsley 2020: passim). Ultimately, the extent to which imprisonment is used is a political matter vested in governments, and beyond the control of prisons themselves. It is, however, appropriate in a work of this nature to question why our imprisonment rates are proportionately so much higher than those of other democracies of varying population size. The high rates of re-offending and reconviction within a short period of release from custodial sentences discussed in Part One bring into question the effectiveness of prison regimes in crime reduction, particularly in conditions of widespread prison overcrowding and the resort by the courts to the over-use of short-term custodial sentences rather than community sanctions for less serious offences. It was also in the late 1980s and onwards that the impact of ‘managerialism’, previously discussed in Chapter 3, began to affect the conduct of routine daily business particularly within the Departments of State responsible for the delivery of public sector services.3 The concept subsists in the belief that public institutions should be run ‘as if ’ these were for-profit organisations even though they remain government institutions funded through state taxes. By such means, the parallel case can be made for the privatisation of prisons and related criminal justice services on the basis of encouraging competition and innovation at decreased cost to the national economy.4 In practice, however, the ideological basis of managerialism leads inevitably to the over-centralisation of control of public services and the limitation of professional autonomy and innovation at the operational point of their delivery. By implication also, the concept relies upon a belief that those specifically selected and 3

This development was particularly evident in the sectors of the public services including Health, Education, Criminal Justice Agencies, Policing and the like. Managerialism as a concept and an ideology subsequently mutated into the term described as ‘new public management’. For a concise explanation of the genesis and expansion of the concept see Managerialism at https://en.wikipedia.org/wiki/Managerialism [Accessed 15/12/2018]. 4 In fact, however, the notion of ‘at decreased cost’ can be equivocal insofar as the concept of privatization involves a contractually based ‘spreading of cost’ over a specified period as opposed to a commitment of funding on a ‘one-time’ basis of expenditure.

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trained in corporate management techniques at the ‘centre’ of organisations are better equipped to make operational decisions and judgements than those employed at the ‘coal face’ of service delivery. Such a belief system is, it may be argued, at the least questionable on an operational basis. Such is the background against which Part Two of this book is compiled. In this chapter, the focus is placed on the structure and management style of the Prison Service necessary at the strategic level to deliver its essential social purpose. This has to be viewed in conjunction with the recent formation of HM Prison and Probation Service (HMPPS) since April 2017 and the consequences of that amalgamation.

HMPPS: Chimerical Vision or Marriage of Inconvenience?5 The attention of the reader who would wish to understand the complex management structure of HMPPS is directed to the Organisation Charts provided in the link http://www.gov.uk/government/hm-prison-and-pro bation-service-organisation-chart [Accessed 1/9/2020], published on 29 June 2018 and updated on 1 May 2019 (HMPPS 2019). A summary version of the CEO, DG and Director Structure of the organisation is at Fig. 6.1. This should, however, be viewed with the more detailed structural charts and geographic maps for the individual Prison and Probation Service components of HMPPS appended to that document as indicated in fn. 6 below.6 Taken together, these documents reveal the extraordinary complexity of the almost monolithic entity that HMPPS has become since 2017, and the extent of strategic centralisation that has been invested in the oversight and direction of the combined Service. For while the two 5

The adjective ‘chimerical’ derives from the Greek Myth of the Chimera—a fire-breathing monster with the head of a lion, the body of a goat and the tail of a serpent. 6 See https://publications.parliament.uk/pa/cm200607/cmselect/cmwelaf/74/7401.gif [Accessed 25/6/2020] for prisons, and http://www.gov.uk/government/publications/national-probationservice-england-and-wales-divisions-map. Published 30 May 2014 (NOMS, 2014) [Accessed 28/6/2020] for probation.

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Head of CEO’s Office

Chief Executive Officer HMPPS

Director General Probation

Director General Prisons

Executive Director SOCT

Executive Director Public Prisons North

Executive Director Chief Probation Officer & Women

Executive Director Probation Reform Programme

Executive Director Public Prisons South

Executive Director High Security & Long Term Estate

Executive Director Community Interventions

Executive Director Wales

Executive Director Safety & Rehabilitation

Executive Director Custodial Contracts

Deputy Director Prisons

Executive Director Performance

Executive Director Prison Estate Transformation Programme / Population Management

Executive Director Change, Strategy & Planning

Deputy Director & Head of DG’s Office

Executive Director Prison FM Programme

Executive Director Youth Custody Service

Fig. 6.1 HM prison and probation service organisation chart—CEO, DG and Director Structure

Services were brought together within NOMS in 2004 (cf. 43–44 and 48 supra) and into the Ministry of Justice in 2007, they remained separate entities each with its own historical and professional ethos in dealing with offenders, which served to bring some logic to the criminal justice process. Thereafter, both Services lived through a period of stringent budgetary retrenchment from 2010 to 2017, rising demands on their workloads, and workforce reductions. Understandably, in these circumstances the morale of both Services suffered considerably, and many experienced professionally trained staff took advantage of voluntary redundancy or early retirement to seek employment elsewhere. The merger from April 2017 into HMPPS, the scheduled abandonment of the CRC fiasco (cf. Chapter 5: 87 supra), and the subsequent decision announced in June 2020 to expand the prisons estate by building a further four large (1,250 place) new prisons in addition to the two (1,680 place) Category ‘C’ ‘resettlement’ prisons under construction at Wellingborough and Glen Parva, added further uncertainty about the future operation of both Services. At an estimated cost of £2.5 billion

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to add a further 10,000 prison places, the decision also underlined the evident inconsistency in governmental criminal justice policy-making and implementation, particularly since the creation of the Ministry of Justice in 2007 and subsequently. From the viewpoint of prisons, the organisation charts indicate a structure including a Director General, a Deputy Director Prisons, six Executive Directors, sixteen geographic Prison Group Directors, and a number of other Deputy Directors and departmental heads with different functional roles some of which are described as ‘services to probation as well as prisons’. The same general structural pattern is repeated for the Probation Service, but on a lesser numerical scale and including ten Probation Divisional Directors six of whom have defined geographic areas assigned to them. The geographic maps indicate that there is no coterminous relationship between the Prison Group areas and those of the Probation Divisions. These strategic structural arrangements raise a number of significant issues. First, the notion of a unified Service implicit in the formation of HMPPS in 2017 under a single Chief Executive Officer achieved only a marginal sharing of ancillary logistical functions (Education, Health, Chaplaincy, Psychology, HR, H&S, etc.) that was not formerly available within the NOMS structure of 2007. Second, the core functions of the Prison and Probation Services remain professionally as disparate as these always have been, save for a mutual inter-dependence in relation to the casework of offenders at the custody: community interface between the two Services. Third, the social roles presently performed by Prison and Probation Officers in England and Wales are in no sense interchangeable, and their professional training, accreditation and operational criteria are of an entirely different nature in terms of management, supervision and career structure. Thus the amalgamation of these two entities was, as matters stand, scarcely more logical than that of a forced marriage between the National Health and the Fire & Rescue Services.7 The words ‘as matters stand’ in the previous paragraph are of importance. As will be seen later in this work there are examples in other 7 On the analogy that Doctors and Paramedics do not drive or operate fire-fighting appliances, and Fire-fighters do not operate on those whom they rescue.

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criminal justice organisational structures worldwide of the extent to which a considerable measure of integration can be achieved. Such would normally depend upon adoption of an umbrella title for the entire organisation such as a Department of Correctional Services appropriately subsuming both (and other professional) roles within its operational purpose. This would ultimately depend for success upon a formal agreement between both parties to unite in common cause, rather than have a unification politically imposed upon them. No amount of Party political posturing and debate in Parliament will resolve this fundamental issue, or, indeed, others that currently hinder the effective functioning of the Prison and Probation Services both of which are already mired in a state of operational overload and workforce shortages. This latter situation is exacerbated by the failure of successive governments since the mid-1990s to determine with clarity and consistency the purposes of criminal punishment,8 sentencing and imprisonment, and also by their evident reluctance to legislate to prevent the overcrowding of prisons beyond levels of certified normal accommodation (CNA) and place strict limitations on the use of short-term prison sentences by the courts. Harking back to 2001 and the Halliday Report (Home Office 2001, op. cit.) it is of interest to note that in an analysis of that Report undertaken by Anthony Bottoms some three years later he concluded: He [Halliday] was right to conclude that there is no strong body of empirical evidence favouring further increases in custody in order to achieve crime reduction through either incapacitation or enhanced general deterrence. Halliday’s conclusions on rehabilitation, however, look substantially weaker than they did in 2001, and, sadly, he in any event

8 In fact, an attempt to do so was made in Part 12, Chapter 1, section 142 of the Criminal Justice Act 2003, but resulted in a multi-purpose provision including the confusing reference to the reduction of crime through deterrence without specification as to which form (i.e., whether specific or general—or even both). Public protection was also included as a purpose of sentencing—presumably through incapacitation of offenders, and a further reference was made to ‘the making of reparation by offenders to persons affected by their offences. As will be seen later in this work, by inference this suggests through the use of Restorative Justice interventions which successive governments after 2003 neglected to pursue.

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overstated the case for rehabilitative effects at the time of his report. (Bottoms et al. 2004: 71)

It is, of course, a matter of record that in spite of accepting many of Halliday’s main recommendations, the then (New Labour) government moved in precisely the opposite direction in the Criminal Justice Act 2003 with its introduction of the ISPP and ESPP sentences which, in conjunction with its previously enhanced sentencing provisions,9 paved the way for the excessive and overcrowded prison population that persists to the present time.

Structural Uncertainty in Prisons Management There were, however, other historically deep-seated problems with which the Prison Service had to contend during the mid-1990s in particular, and into the new millennium, in addition to that of accommodating its burgeoning prison population. At both the strategic and the operational levels of management, the governance of prisons was plagued by an appalling climate of industrial relations between management and the Prison Officers’ Association (POA) reaching back to the Fresh Start initiative of 1987 and even further (cf. Chapter 2: 13 and subsequently). Though since 1939 the POA had enjoyed affiliation to the Trades Union Congress (TUC), it had arrogated to itself powers over its membership to invoke strike action and working to rule disruption within prisons which were, in fact, illegal in law since it had not strictly full Trades Union status. This fact was known to successive Home Office officials, Home Secretaries and Director Generals who secretly chose to ignore it, rather than confront the POA with it directly for fear of extensive industrial action within the prison establishments of England and Wales. The matter came to light in the Summer of 1993 when Derek

9 Principally in the Crime (Sentences) Act 1997 and the Sex Offenders Act 1997, introducing mandatory minimum sentences and enhanced sentences for serious sexual offences respectively.

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Lewis,10 was the recently appointed Director General and was considerably concerned by the belligerent behaviour of the POA National Executive Committee (NEC) on first encountering them at scheduled meetings in the Home Office (Lewis 1997, op. cit.: 30–142). Faced with the ever-present threat of industrial action in prison establishments endorsed by the POA NEC, Lewis convinced the (then) Home Secretary Michael Howard that legal action was necessary to avert such disruption, and in November 1993 initiated an action in the High Court seeking an injunction to make inducement of prison officers to take industrial action illegal. The case was heard on 18th November 1993, and against the protestations of the POA, an injunction was granted barring the POA from initiating industrial action (Ibid.: 138). Shocked, but not entirely defeated, the POA NEC subsequently used the ultramilitant POA local committee at Preston Prison in a ‘guinea-pig’ role to issue an instruction to its members not to admit prisoners if to do so would lead to overcrowding of the establishment. A second injunction had to be sought in the High Court to make such action illegal, was duly granted, and writs were served on the individual members of the Preston Prison POA local committee to desist from inciting such action or face criminal prosecution. The Branch Committee members decided to concur with the injunction. The third, and temporarily closing round of this industrial relations guerrilla war took place in September 1994 at Liverpool Prison in Merseyside. It followed the pattern of a work-to-rule refusal by the prison staff to work additional hours for which they received time off in lieu of overtime payment within the terms of the Fresh Start agreement of 1987. This action included the restricted unlocking of prisoners in small groups, the arbitrary cancellation of visits without the governor’s agreement, and various other restrictive acts on the alleged excuse of staff shortages. The POA at both the local and national levels claimed that the action was taken by staff individually, and without inducement from the union—a dubious claim that would be difficult to refute, but which

10 The first Director General to be appointed from outside the Home Office or the Prison Service Governor grades.

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was not illegal in terms of the previous injunctions secured by the Prison Service management. The response from Prison Service Headquarters in London was to muster some two hundred governor grade staff at Hutton Hall Police College in Lancashire with a similar number of police officers on standby, and in the event of a walk-out by the prison staff to suspend them en masse and take over the operation of the prison. This robust and calculated, though uniquely determined counter-measure by the Prison Service caused the POA to re-consider its position, and instruct its members to return to normal working. And there the matter concluded. As a result of this confrontation, there was a year-long stand-off by the POA NEC from any formal meetings with the management of the Prison Service, but the spell of illegal and wildcat industrial action had been broken although it simmered on beneath the surface in a few prisons such as Preston, Hull and Garth in which trades union militancy was traditionally entrenched. The relief of prison governors was palpable, though the spectre of a resumption of the guerrilla war remained a grim reality in the day-to-day management of prisons into the new millennium. Other, more immediately threatening operational concerns were to arise as we have already seen in Chapters 2 and 3 supra as the decade drew to a close.11 This pattern of events did, however, reveal some less than admirable and, indeed, even devious aspects of the behaviour of both parties towards the strategic management of the Prison Service over several decades of the post-War era. On the one hand, it is clear that at the highest levels of the Civil and Prison Services there was maintained a conspiracy of secrecy over the true status of the POA as a trades union. This left prison governors vulnerable to the belligerent tactics of the POA within their establishments, and effectively unable to implement necessary changes in working practices and regime conditions to the benefit of all within their prisons. It also contributed in significant part to the many 11

In fact, the legality of industrial action was to re-emerge in 2013 when two prison officers (Ms. J. Bates and Mr. A. Watts) on behalf of the POA NEC brought a case before the European Court of Human Rights (ECHR) to have the 1993 Injunctions of the High Court set aside—an application which the ECHR unanimously declared inadmissible. Here, see: POA and Others v The United Kingdom, [ECHR App. No. 59253/11] 21 May 2013.

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incidences of disorder in prisons from the 1970s onwards by prisoners dissatisfied with their conditions and management. On the other hand, the POA took full advantage of the potential to disrupt the management of prisons at their own convenience, filibuster progressive reforms of archaic and inefficient working practices, and foster a climate of mutual distrust between local POA Branch Committees and prison management. The progressive decay in the supervisory and disciplinary structure of prison officer grades post-Fresh Start from 1987 onwards encouraged a culture of procedural weakness and lessened standards of performance of routine duties which prisoners exploited, and could have been avoided if the POA at the national and local levels had insisted upon assisting prison management to overcome it. Instead, the POA devoted its energies to the maintenance of a continuous campaign of industrial strife at every level of the Prison Service which undermined the operational performance of an essential public service. We return to this particular issue in Chapter 7 which follows.

Restoring Strategic Reputation and Style Within HMPPS Given the account in Chapters 1 to 4 of this work, it should be evident that the Prison and Probation Services of England and Wales have functioned in conditions of crisis management since at least the 1980s if not earlier. The situation of HMPPS within the wider criminal justice process in 2020 yields little confidence that the so-called crisis within the Prison Service in particular is likely to be resolved in the immediate future. This is because it is not in fact singular in nature, but rather a complex of inter-linked and over-lapping component sub-crises each of which has causal symptoms that have to be assessed and considered separately (see Fig. 6.2). For the purposes of subsequent discussion here, these are summarised as: • Sub-Crisis 1. A crisis of strategic professional identity and purpose, and the need to restore governmental and public confidence that

6 Strategic Management of Prisons: Structure and Style

Prison Staff Dimension

1 Overcrowding of Prison Capacity by Courts Sentencing Practices

Prisoner Dimension

2 Failure to Provide Accommodation Conditions of Decency and Humanity

8 Reductions in Parole and Temporary Release on Licence

76 Serious Lapses in Security & Control Leading to Disorder & Escapes

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Confusion over Purposes of Governmental Penal Policy

6 Restrictive Staff Practices & Working to Rule

3 Failure to Provide Purposeful Regimes & Occupational Facilities

4 Deteriorated Staff: Prisoner Relationships

5 Militant Industrial Relations: Staff/POA/ Establishments/Prisons HQ

Fig. 6.2 The causal sequence of the prisons crisis

the Ministry of Justice’s HMPPS model can and will deliver crime reduction; • Sub-Crisis 2. A crisis of ‘prison numbers’ and overcrowding that has to be reduced and maintained, if necessary by legislation, to give prisons back control over their capacity to provide decent accommodation conditions and full and purposeful daily regimes for all prisoners; • Sub-Crisis 3. A crisis of security and control within prisons caused by excessive prisoner numbers preventing the reduction and elimination of drugs, contraband and assaultive and self-harming behaviour;

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• Sub-Crisis 4. A crisis of personal pride, discipline, integrity and supervision within the uniformed grades of the Prison Service leading to low morale, sub-standard performance of duties, and failures in ensuring the behavioural control of prisoners. Sub-Crisis 1. The first sub-crisis is one of moral integrity and political determination involving government ministers, the highest level civil servants in the Ministry of Justice, and the strategic leadership of the Prison Service at the CEO, DG and Director levels. Formation of the Ministry in 2007 and its subsequent evolution created a massive new bureaucracy to oversee and over-control a Service failing to deliver its essential purpose of crime reduction through neglect of decisive strategic action to reduce its excessive population size and operational complexity. The fundamental cause of this situation was, and remains, the substitution of the crime reduction agenda recognised as essential in the early 1990s by one of crime control from the mid-1990s and onwards: an agenda that was bound to fail. The well-informed traveller on the Clapham Omnibus is aware that crime is an endemic reality in democratic societies, and even also in the most totalitarian of regimes. It is, ultimately, not amenable to eradication by fiat, or by the most draconian of punitive deterrent threats. The volume of premeditated crime is considerably exceeded by that of a spontaneous, opportunistic or reactive nature: a fact almost universally accepted by social scientists, but which seems to evade the cognitive capacity of most contemporary politicians and their policy-advisers, or who deliberately choose to disregard it. The dubious belief that crime can be ‘managed out’ by voluminous tranches of criminal justice legislation is, of course, a consequence of the managerialist agenda that breeds its own bureaucracies. The evidence for this assertion lies in the fact that, as the political commentator Leo McKinstry has recently indicated, ‘Parliamentary records over the past twenty years show no fewer than 273 pieces of legislation with ‘Criminal Justice’ in their titles. This parliamentary restlessness was accompanied by a huge expansion in bureaucracy’ (McKinstry 2021). As he further

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pointed out, a plethora of new governmental bodies has been created, not the least of which in size is the Ministry of Justice since 2007.12 The danger here is that bureaucratic expansion has been required to create both the proliferation of legislation, and also servicing of the entities responsible for its implementation.13 This has enabled ministers to ‘hide behind a smokescreen of law-making’ (Ibid.), rather than take the necessary decisive action to confront and resolve the causal issues that lie at the heart of the ‘crisis’ situations cited previously. In the instance of prisons in particular, this means the scourge of overcrowding and resort to short-term custody that defeat any aspirations towards crime reduction as an outcome of imprisonment. To some extent also, this explains but does not justify the ‘top-heavy’ organisational structure of HMPPS discussed earlier. Why is it that ministers, the CEO and DGs of HMPPS are so reticent about confronting these issues in an evident and forthright manner? The answer lies within the unwritten ‘ethical’ code of the Civil Service that it is the duty of senior civil servants to protect their ministers from political embarrassment at all costs, and the responsibility of those of immediately lesser status to ensure that contentious issues are ‘managed’ in a way that ensures that such is the case. If the latter responsibility is not fulfilled, the post-holder becomes entirely dispensable and liable to replacement, as became evident in the case of Derek Lewis the ill-fated Director General of the Prison Service discussed earlier (cf. Chapter 3: 35). HMPPS cannot deliver crime reduction in its existing state because in order to do so its present organisational structure and the workload expected of it render it unfit for purpose. This unpalatable fact leads inexorably to a requirement to re-balance the strategic and operational relationships between the Prison and Probation Services and reduce the demands placed upon either Service. In the case of the Prison Service 12

Leo McKinstry lists the National Crime Agency, 40 Police and Crime Commissioners, the Sentencing Council, the Supreme Court, the College of Policing, the London Mayor’s Office for Policing and Crime, the Victim’s Commissioner, the Border Force, and the Independent Office for Police Conduct (Ibid.). 13 Here, it is difficult to resist the temptation to suggest that this situation is an excellent example of ‘Parkinson’s Law’ coined by Cyril Northcote Parkinson to explain the proliferation of bureaucracy as a result of his experience within the British Civil Service in the 1950s in C.N. Parkinson, Parkinson’s Law: The Pursuit of Progress, London: John Murray, 1958.

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this means the elimination of overcrowding and the use of short-term imprisonment: in that of the Probation Service it means reducing the casework supervision requirement in relation to ex-prisoners to focus on those discharged from medium (i.e. four years and more) and long-term sentences only. The legislation within the Offender Rehabilitation Act 2014 to impose a twelve-month supervision requirement on all offenders sentenced to longer than one day of imprisonment (cf. 51 supra) must, therefore, be repealed or substantially modified.14 These considerations lead logically to discussion of the second ‘crisis’ identified previously. Sub-Crisis 2. The so-called crisis of prison over-population or ‘numbers’ dates back to the early 1990s and is closely linked to a parallel crisis of prison conditions in England and Wales as became evident in Chapter 2. The root cause of the over-population situation which has now existed for almost thirty years is the over-use of prison custody in relation to the availability of prison places. Until the mid-1990s the maximum accommodation capacity of every prison was specified by the term ‘certified normal accommodation’ (CNA) which it was illegal for prison governors to exceed other than in exceptional circumstances, and for a strictly limited period approved by Regional Directors (until 1987) and subsequently by Area Managers. These rules were well known to Ministers and other government officials and strictly adhered to by prison governors. However, in the mid-1990s when overcrowding of prisons was becoming widespread with the exception of the Dispersal Group of high security prisons, the term ‘operational capacity’ (Op. Cap.) was taken into use as a means of evading the CNA restriction. It was defined as that number of additional prisoners that could housed in a prison in the judgement of the Area Manager without a serious risk to the security and control of the establishment. This led to the increasing practice of ‘doubling-up’ cells designed for single occupancy to accommodate two prisoners, but had

14 The supervision requirement was contingent upon the legislation within the 2014 Act for the establishment of the 21 Community Rehabilitation Companies (CRCs) to supervise such ex-offenders. The decision in July 2015 to disband the CRCs from 2020 onwards on expiry of their contracts (see 52–53 supra) rendered such supervision unmanageable for the Probation Service.

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serious implications for the delivery of regimes and also for the logistical capacity of many prisons in terms of catering, healthcare, prisoner employment, visitation, and recreational facilities. It also led to prisoners being locked in cells during the working day for lack of purposeful occupation, and to the introduction of in-cell television as a means of alleviating their boredom. In spite of the programme of building additional houseblock accommodation in many prisons, the speed with which the prison population increased during the 1990s outstripped the supply of new places by a considerable margin, and had many of same the dysfunctional effects on regime facilities as the doubling-up process. No government action of any effect was taken to restrict the sentencing behaviour of the courts in the use of short-term imprisonment, and overcrowding of prisons became an enduring feature of prison life thereafter. Even worse, perhaps, was the overburdening effect of the situation on the morale of the staff of the Prison Service which, in combination with the increasing resort by the government to the privatisation of prisons, ultimately led to a lowering of standards of performance and control of the prison population. We shall return to further discussion of this development in Chapter 8. Given the increasing frequency of adverse comments on the seriousness of the situation in the reports of HM Prisons Inspectorate, and from reform groups such as the Prison Reform Trust and the Howard League for Penal Reform during the late 1990s and into the new millennium, the only response from the government was to plan and build more prisons and fill them with even more prisoners at huge and avoidable expense to the national economy. This evoked no particularly antithetic response from the general public or the tabloid media which seemed content to believe that public safety was being enhanced and was largely unconcerned about conditions within the prisons widely perceived as disgusting places to which disgusting people are sent. Sub-Crisis 3. This situation concerns the operation of security and control within the prisons of England and Wales at the present time, attention to which was drawn in Chapter 5 (cf. 87 supra) in relation to violent, drug-related and self-harming behaviour. The account of Janjeva (2020, op. cit.) was broadly identical to that of the Ministry of Justice

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(2019, op. cit.) and the earlier assessment of the Prison Reform Trust (2019, op. cit.), each of which was of considerable concern. Although there have been no notorious escapes from prisons since that from Parkhurst Prison in January 1995, the security situation within prisons presents a very different picture. Security in prisons is inextricably linked to the control of the prisoner population of each establishment on a dayto-day basis, and the personal safety of both prisoners and prison staff. It is also linked to the frequency of self-harming behaviour within the prisoner community, much of which stems from individuals fearing for their safety from physical violence, intimidation and psychological harm, and seeking protection. Prisons required to operate permanently at levels of occupation beyond that for which they were originally designed are overcrowded by definition.15 The CNA level of a prison is not confined to the cellular or other accommodation alone, but also includes the provision of daily regime conditions and employment for every prisoner, and the capacity of the logistical functions (catering, medical, educational, recreational, visitation, etc.) necessary to provide and maintain normal health and well-being. The adoption of the Operational Capacity (Op. Cap.) measure in prisons in the 1990s ‘legitimised’ an extent of overcrowding which defied the spatial and logistical conditions in prisons, which in turn affected the ability of prison staff to maintain necessary control over the behaviour and circulation of prisoners in conditions of safety. Beyond these factors, however, overcrowding affected the internal security of prisons to a considerable extent in relation to the routine searching of persons and places essential to the discovery and interception of drugs, contraband16 and weapons. Discussion of this important issue recurs in Chapter 8, but it will be noted from Fig. 6.2 supra that in addition to making security and control within prisons more unreliable, the increase in drugs availability and assaultive behaviour had a moralelowering effect upon the performance of prison staff and encouraged an

15 This definition relates to the level of Certified Normal Accommodation (CNA) of the establishment previously mentioned. 16 Contraband in this context includes all items which in the possession of prisoners are illegal, including mobile phones and other communication devices, harmful substances, etc.

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increase in the militancy of their representative Association in its dealings with prison management at both the national and local levels. The marked increase in the availability of drugs in prisons since the 1990s is a matter of serious concern. Many prisoners arrive in prisons with a history of drug-taking and dependency in their communities. Others have been deeply involved in drug dealing and extortion leading to their convictions and imprisonment. The drugs culture within prisons results in unpredictable and aggressive behaviour among prisoners and towards prison staff,17 and the constantly changing components of their synthetic manufacture frequently evades standard drug testing equipment and identification. It is an unfortunate but irrefutable fact that due to the recent development of counter-measures to significantly reduce the incidence of ‘drone over-flying’ of prisons, the main means of importation of drugs into prisons is confined to their entry on, or within, the persons of those permitted to access the premises as visitors, prison staff or approved contractors. We return to this crucial issue in the chapter that follows, although it will require an unprecedented extent of determined action and leadership at the highest managerial level of the Prison Service to resolve it effectively. Sub-Crisis 4. The fourth sub-crisis is one within the core functioning of the Prison Service itself, although traces of a similar malaise are evident in other major Public Services such as Health, Education, Probation, and to a lesser extent in Policing. It goes beyond the impact of managerialism upon organisational behaviour, and lies within the core values of professional pride, integrity, dedication, discipline and morale that sustain and underpin operational effectiveness. In essence, it differentiates vocations from ‘jobs’, and professionals from journeymen. Prison Officers, like Police Officers, receive a course of basic training, preparing them for their roles in prisons as opposed to public duties. The nature of their work is multi-faceted, requiring physical and psychological fitness, developed inter-personal, team-working and communication

17

Particularly where synthetic psychotropic cannabinoid-type drugs such as Spice 99, K2, Joker, Black Mamba, Kush and Kronik are in circulation. For further information on the nature, effects on health and behaviour, and general chemical composition see https://drugabuse.gov/ publications/drugfacts/synthetic-cannabinoids-k2spice [Accessed 22/09/2020].

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skills, consistency of bearing and behaviour (self-discipline), and a nonjudgemental approach towards the offences for which their charges are imprisoned. They do, however, require the active and consistent support, supervision and encouragement of their line managers since the behaviour of prisoners can be unpredictable, intimidating and devious. The comradeship of their peer-group is of considerable importance in enabling and maintaining high standards and professional pride in the performance of their duties. During the period following the structural re-organisation of the Prison Service consequent upon the Fresh Start initiative of 1987, the working lives and conditions of service of uniformed prison staff changed significantly and in many respects for the better. They became salaried employees with regular hours of attendance, no longer dependent upon overtime working for a reasonable level of remuneration. On the debit side of the re-organisation, however, the new management structure introduced into prisons had managerialist underpinnings that profoundly changed the nature of working practices at every level within establishments. At the governor grade levels of the Service, Governors Class 5 (the lowest level) generally became Unit Managers or managers of similar sized functional groups. Governors Class 4 became Heads of Departments (Operations & Security, Residential Services, Inmate Activities, etc.). Governors Class 3 might become governing governors of smaller prisons, or Heads of Custody/Deputy Governors of larger prisons, while Governors Class 2 and 1 became governing governors of medium or large sized prisons. Specialist governor grades in Works Services were graded according to the size of the establishment they administered (normally at Class 5 or 4), while Heads of Management Services remained Civil Service grades normally at Higher or Senior Executive Officer (HEO or SEO) level. Within the uniformed grades of the Prison Service, the effect of the reorganisation was much more significant. The grades of Prison Auxiliary Officer (PA), Prison Officer, Senior Officer (SO), and Principal Officer (PO) remained broadly unchanged until 2013. However, at the most senior level of the uniformed structure the decision was made to abolish

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the three most senior grades of Assistant Chief Officer (rarely used),18 Chief Officer Class 2 and Chief Officer Class 1 altogether. The implications of this decision were considerable and far-reaching, somewhat similar in effect to the abolition of the Regimental Sergeant-Major or other Warrant Officer ranks in the Armed Forces which many would consider entirely incredible and certainly unacceptable. Though the Chief Officers who remained in the Prison Service were to be re-graded as Governors Class 4 or 5, many who were close to compulsory retirement age at sixty years opted to take early retirement. More to the point, however, the demise of the Chief Officer ranks left the uniformed staff of the Service without an important focal point in their career structure, and created a ‘leadership gap’ that could not easily be filled. Chief Officers in prisons occupied a unique position: on the one hand, they were responsible for the discipline and performance of the uniformed grades; while on the other hand they were a much valued and respected source of experience and advice to the governor grades in the day-to-day operation of prison management. While many prison officers did not aspire to eventual governor grade status or employment, they had considerable respect for those of their number whose ability achieved promotion to the Principal and Chief Officer ranks. There is no doubt that for all of the apparent advantages of the Fresh Start re-organisation, it ultimately resulted in a diminution of the daily levels of supervision and support available to the uniformed staff of the Prison Service in the performance of their routine duties. In particular, the re-organisation at the Headquarters level led to the creation of a new bureaucratic structure of Directorates and a considerable proliferation of paperwork in the form of Prison Service Orders, Instructions to Governors, Advice to Governors, Policy Directives and Budgetary Controls all requiring detailed compliance at the operational establishment level in addition to the already significant requirements for the administration and casework of prisoners. As a result, managers at every level from governing governors to unit managers became increasingly desk-bound on a daily basis, with lessened capacity and time to devote to the supervision of routine procedures essential to the daily control and security 18

The grade of Assistant Chief Officer was confined to use in the largest prisons only.

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of prisoners. This situation, in combination with the subsequent overcrowding of prisons in the 1990s and onwards, led almost inevitably to the enduring Prisons Crisis indicated in Fig. 6.2.

Conclusions from This Chapter If this situation is to be resolved, all four of the sub-crises and their antecedent causes outlined above will have to be addressed with reforming vigour and determination. This much stated, however, the present situation within the Prison Service of England and Wales is symptomatic of the malfunctioning of the wider criminal justice process in a number of fundamental respects. For this reason alone, resolution may have to be approached from a level above that of party political considerations, which points towards the necessity for a Royal Commission as a means of achieving an independent, reasoned and durable outcome. At the outset of any such analysis, it would have to be questioned whether the formation of HMPPS, synthetically combining the Prison and Probation Services into a single entity within the Ministry of Justice serves any useful purpose whatsoever in its present configuration. It created a vast and unwieldy bureaucracy at its centre, but yet failed to resolve the operational problems of professional incompatibility at the point of delivery of its services.19 It is also evident that successive governments and Home Secretaries/Justice Ministers since the 1990s have failed to introduce robust measures, if necessary through legislation, to prevent the overcrowding of prisons and outlaw the use of short-term prison sentences that encourage recidivism. The evidence is overwhelming that overcrowded prisons encourage violent and self-harming behaviour, the importation of drugs and contraband, and the degradation of regimes to address offending behaviour and post-sentence re-offending.

19 These problems, it will be recalled, involve coterminous geographical alignment, the supervision of short-term sentenced prisoner releases, and the casework and liaison responsibilities for long and medium-term prisoners.

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The impact of the Covid-19 pandemic on the UK economy in the years immediately ahead will, inevitably, be profound, and result in considerable retrenchment in the funding of public sector services including the criminal justice process. Continuing to expand the size of the prisons estate by building more and larger prisons may prove to be a profligate misuse of national resources where this can be avoided by the introduction and implementation of more demanding non-custodial measures and community supervision without a significant increase in public risk. Reducing prison overcrowding and enhancing community justice may necessitate the curbing of judicial discretion in sentencing which successive governments have avoided, presumably out of fear of an adverse reaction from the judiciary on the one hand, and from the mass media on the other. Both forms of reaction cause anxiety in politicians for their electoral credibility which the appointment of a Royal Commission might alleviate to a considerable extent. This chapter has focused on the present problems of structure and style confronting an essential public service in the form of prisons, and the crisis within them. The crisis and its causes are not a new phenomenon, but rather one of strategic and historical mismanagement, misconceptions and inertia. Part of the censure for this situation can be laid at the door of prisons themselves in which standards of performance and supervision evidently lowered post-Fresh Start 1987. A further part can be attributed to a lack of forceful and enlightened leadership at the highest reaches of the Prison Service during the same period, and the malign climate of industrial relations that festered within its structure at all levels. A major proportion, however, rests with the partisan political legislative behaviour of successive governments and ministers, and the bureaucratic culture within the Senior Civil Service who were their shields and advisers. In the chapter that follows, we shall examine a range of remedial and reforming measures within the criminal justice process in general, and in prisons in particular, which could result in ‘doing justice better’ without excessive cost to the national economy or significantly increased risk to public safety.

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References Bottoms, A.E., Rex, S. and Robinson, G. (eds.) (2004) Alternatives to Prison: Options for an Insecure Society, Cullompton, Devon: Willan Publishing. Carter, P. (2003) Managing Offenders, Reducing Crime: A New Approach, London: Home Office Strategy Unit. Fair, H. and Walmsley, R. (2020) World Prison Brief , 14th Edition, Europe, London: ICPR. HMPPS. (2019) HMPPS Workforce Statistics Bulletin, London: Ministry of Justice, (March). Home Office. (1979) Committee of Inquiry into the United Kingdom Prison Services—Report, Cmnd. 7673, [The May Report], London: HMSO. Home Office. (2001c) Review of the Sentencing Framework, Making Punishments Work, [The Halliday Report], London: Home Office Communications Directorate. House of Commons Library. (2020a) Briefing Paper Number 5199—Release from Prison in England and Wales, [Compiler: J. Beard], London: House of Commons, (24 January) House of Commons Library. (2020b) Briefing Paper, CBP-04334—Prison Population Statistics, [Compiler: G. Sturge], London: House of Commons, (3 July). Janjeva, A. (2020) England and Wales’ Prison System is in Crisis, London: RUSI, (July). Full text Paper available at: https://www.printfriendly.com/p/ g/A5NPXJ [Accessed 18/7/2020]. Lewis, D. (1997) Hidden Agendas: Politics, Law and Disorder, London: Hamish Hamilton. McKinstry, L. (2021) ‘We Don’t Want Police Pals Boris, We Want Bad People Locked Up For a Long Time’, Daily Express, July 26, (Comment) - also available at: https://www.express.co.uk/comment/columnists/leo-mckinstry/ 1467547/uk-beating-crime-plan-police-numbers [Accessed 20/9/21]. Ministry of Justice. (2019) Safety in Custody Quarterly Update to December 2018, Table 2, London: Ministry of Justice. Prison Reform Trust. (2019) ‘Safety in Prisons’, in Prison: The Facts, London: Prison Reform Trust, (Summer).

7 Towards ‘Doing Justice Better’

Learning from the Lessons of the Past In the previous chapter, a considerable part of the discussion was devoted to the historical and structural reasons why the Prison Service of England and Wales came to be in a critical condition into the present millennium, and remains so to a significant extent. The causal factors contributing to this development were identified, many of which remain unresolved at the present time. The naissance of HMPPS from 2017, applied like a wound dressing to the situation, has dubious curative potential because the infected parts beneath it have not been effectively disinfected and treated. Reluctance to apply the necessary treatment has been both politically motivated and neglectful when the symptoms of the malaise were plainly evident and yet overlooked or disregarded. The fast increasing size of the prison population from the mid-1990s onwards (cf. Fig. 1.1) made it evident that the demand would outstrip the capacity to accommodate it in conditions of decency and humanity as this work has shown clearly. The only strategic remedy for this situation was to stem the inflow of persons sentenced to custody, if necessary by legislation, but that resort © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_7

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was never implemented. To the contrary, the Criminal Justice Act 2003 exacerbated the situation with the introduction of the ISPP and ESPP indeterminate sentences (cf. Chapter 4 supra). On numerous occasions during the past three decades clear signals have been sent to successive governments that their penal policies in relation to imprisonment had become untenable and dysfunctional. Even their own selected advisers (e.g. Woolf and Tumim 1991; Halliday 2001; Auld 2001; Carter 2003, 2007; Coulsfield 2004 and others) previously cited in this work made this situation unequivocally evident, but their advice was, effectively, disregarded for largely doctrinaire reasons. The timeless adage concerning horses and water became repeatedly evident within government circles.1 Stated bluntly, the Prison Service of England and Wales has been systematically abused by government ministers for at least thirty years past, and that abuse has propelled it into the extent of crisis identified in the previous chapter. However, it has also to be added that its own leadership, ‘conditioned’ or seduced by the mandarin culture and protocols of the Senior Civil Service, has signally failed to object forcefully enough to this abusive treatment to cause a change in ministerial and governmental behaviour towards it. It is also true to state that certain aspects of the long-running prisons ‘crisis’ have been of the Prison Service’s own making. Failure to resolve its endemic history of disruptive and obstructive industrial relations between its management and the Prison Officer’s Association (POA) exercised a recurring and malign influence upon innovative and more efficient use of working practices and resources within prisons. It took an ‘outsider’ Director General (Derek Lewis in 1994–5) to insist upon actions in the High Court to prevent strike action by prison officers and make it illegal as this account has shown (cf. Chapter 6: 121). Prison overcrowding also imposed a heavy burden on the daily lives of prison staff and their managers. Crowded prisons make prisoners dissatisfied and difficult to control in addition to reducing the regime opportunities available to provide purposeful activities, training and employment. All too frequently it results in prisoners being confined to 1

The origin of this saying is obscure, but it insists ‘that you can take a horse to the water but you cannot make it drink’.

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their cells for periods of every working day, making them restless, aggressive, and uncooperative with prison staff. It also makes essential security duties such as routine searching of cells and persons difficult to undertake properly, leading to lowered standards of detection of drugs and contraband items. Failure to detect and confiscate drugs and contraband items also leads to an increase in assaultive behaviour between prisoners and towards staff, and encourages self-harming episodes among prisoners in debt to drug ‘barons’, as a means of seeking protection from serious physical danger and injury. Ultimately, overcrowding results in the inability of the Prison Service to ensure the safety of its charges, due to the reluctance of the government to legislate against the overuse of imprisonment by the courts. Resort to building more and more prisons is an extremely expensive and inefficient means of evading this situation which is strictly avoidable. These are the lessons from the past which have remained unlearned by successive governments in relation to prisons. Remedying the parlous state of the prisons is not an electoral vote-winner for politicians when other essential public services such as health, education, policing and emergency services are all in need of and competing for additional funding. The elusive construct of ‘public risk’ is a powerful driver in governmental policy-making, and the notion of using imprisonment more sparingly evokes unreasoned responses in both the parliamentary and the public domains. However, many hundreds of relatively minor offenders sent to prisons each year were not regarded as posing significant levels of public risk before being sentenced to short-term imprisonment, but that experience in present conditions is more than likely to have increased both their criminality and whatever level of public risk they posed beforehand once they are released. Even worse, perhaps, it may also have almost irreparably damaged any potential they might have had to refrain from crime and lead productive and law-abiding lives in the future. Against this somewhat pessimistic backdrop, this chapter is devoted to an examination of alternative means of dealing effectively with offenders whose offences pose relatively low levels of risk of to the public and of serious re-offending without resort to imprisoning them.

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Table 7.1 Prison population, England and Wales by sentence length—Prisoners sentenced to immediate custody, remanded in Custody and non-criminal detainees as at 30 June 2019 Sentence length

Total in Population

Less than 1 year 1–4 years Over 4 years determinate Indeterminate (Life, etc.) Recalled to Custody Total Sentenced Prisoners Remand Prison Population Non-Criminal Detainees Total Prison Population

5,459 (7.5%) 16,743 (23.0%) 34,215 (47.0%) 9,463 (13.0%) 6,915 (9.5%) 72,798 (100.0%) 9,145 767 82,710

Source Offender Management Statistics Bulletin, England and Wales, London: Ministry of Justice, 2019d (July)

Scoping the Potential for Custodial Reduction Accepting that 2020 has proved to be an unusual year in terms of prison ‘numbers’ due to the impact of Covid-19, that past predictions of the future size of the prison population have proved to be widely unreliable (House of Commons 2020a, b, op. cit.: 7), the latest prison population projections released in August 2019 have to be treated with some caution. At that time it was predicted the population would stabilise at around 81,700 between 2021 and 2023 providing that there was no significant change in sentencing rates in the interim (Ibid.). Tables 7.1 and 7.2 use Ministry of Justice statistics published in July 2019 (Ministry of Justice 2019a) indicating a sentenced population of 72,798 by sentence length which may assist in this discussion.2 From these data only those prisoners serving sentences of up to and including four years, the maximum effective custodial period of which is

2

The reader may wish to note here that there occurred a considerable variance as to the rates of imprisonment indicated in Table 6.1 fp.57 supra as rates per 100,000 of population (135 in Scotland and 133 in England and Wales), and those quoted in HCBP 04,334, 2020:6 at 173 in England and Wales and 162 in Scotland. However, these data were based on average daily prison population totals in June 2019 and December 2019 respectively according to the sources indicated. Using the relative population figures in Table 6.1 the rates are verified as 132.22 and 135.86 per 100 K of population respectively in mid-2020.

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Table 7.2 Sentenced prison population, England and Wales by main offence group as at 23 July 2019 Main Offence Group

Adults 18 Years +

Juveniles 15–17 Years

Violence Against the Person Sexual Offences Drugs Related Offences Theft etc. Offences Robbery Possession of Weapons Other Miscellaneous Offences Total Sentenced Offenders

17,302 (26%) 11,978 (18%) 9,982 (15%) 8,651 (13%) 7,320 (11%) 2,661 (4%) 8,650 (13%) 66,544 (100%)

1,417 (23%) 492 (8%) 1,355 (22%) 677 (11%) 985 (16%) 369 (6%) 862 (14%) 6,157 (100%)

Source Extracted from House of Commons Library, UK Prison Population Statistics, CBP-04334, [Compiler: G. Sturge], London: House of Commons, 23 July 2019b: 7–8

two years and less under existing (CJA 1991) provisions fall to be considered here. In mid-2019 these people amounted to 22,202 in total, or 30.5 per cent of the sentenced population. Many of them would serve a lesser period in prison custody if they had spent periods on remand awaiting trial, conviction and sentence. They therefore qualify to be considered as short-term detainees for two years or less in prisons. Given the considerable body of evidence (e.g. Woolf and Tumin 1991; Halliday 2001; Tonry 2003; Wasik 2004; Coulsfield 2004; and others including the Prison Reform Trust and the Howard League at frequent intervals) that short prison sentences are largely ineffective in reducing re-offending and are an ‘expensive way of making bad people worse’, the time is now overdue to consider their abandonment and replacement with really demanding non-custodial alternatives. That the average annual cost per prisoner place in England and Wales in 2018–2019 was £43,213 (Ministry of Justice 2019b), and with an average failure rate in excess of 50 per cent within a year of release among adults (Ministry of Justice 2019c) makes the entire enterprise financially questionable in times of economic hardship. It is also inconsistent with the managerialist ethos of running public sector services as if they were ‘for profit’ enterprises (cf. Chapter 3 supra). Table 7.1 also indicates that in mid-2019 there were 9,145 persons held in Prison Service establishments in England and Wales awaiting trial, conviction or sentence. These persons were held in Local Prisons, or

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in Remand Centres operated as prisons for all practical purposes. As citizens as yet un-convicted of crime, even though many of them may have had bail applications refused by the courts, there is a strong moral case to be argued that they should be held separately in secure facilities adjacent to the courts in which they are to be tried, and under the aegis of HM Courts & Tribunals Service.3 These facilities might be operated by private sector entities under PFI (DCMF) conditions, or, if government built or owned, on a contracted-out basis. The Remand population accounted for approximately 11 per cent of the total prison population in 2018, and more than 31,000 people were sent to prison before trial of whom one in ten remanded by magistrates’ courts were subsequently acquitted, and a further 14 per cent received a non-custodial sentence. In the Crown Courts the rates were 13 per cent in either category (Prison Reform Trust 2019, op. cit.: 6). Although the size of the remand population has decreased significantly by more than a quarter since 2010, the workload of the Prison Service in dealing with the remand population is considerable on a daily basis, particularly in terms of their visitation requirements by legal representatives, police, and relatives.4 Taken together, these two measures could lead to a reduction of up to 30,000 in the existing prison population with only a marginal increase in public risk. At a level of 60,000 prisoners, it would also bring down the rate of imprisonment per 100,000 of the population of England and Wales to around 106, considerably more in keeping with those of other Western European nations like France and Italy of similar national population size (cf. Table 6.1 supra). Changing the existing conditions for the accommodation of remand prisoners as suggested here would, although involving inevitable initial 3 It is a widespread practice in the USA for such facilities to occupy secure high-rise premises in city centre locations adjacent to Federal Courts to reduce transportation costs and wasted time in being brought up for trial hearings that have been delayed in court listings. For examples of such facilities known as Pretrial Detention Facilities and their design see: P.C. Krasnow, Correctional Facility Design and Detailing, New York: McGraw-Hill, 1997. 4 Admission of a remand prisoner into a prison requires that a Prison Record File (F1150) is obtained or generated and maintained for each individual taken into custody, recording his/her committal warrants, personal details, and other relevant casework information such as previous convictions etc.

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infrastructural cost, be considerably less expensive than building more and larger prisons as the present government has decided to do recently at an estimated cost of £2.5 billion (cf. 55 supra and Gov.UK 28 June 2020).5 Although the main benefit would be felt in the existing Local Prisons and Remand Centres, the former of which are among the most overcrowded in the existing prisons estate, it is a morally supportable imperative towards providing improved conditions of decency and humanity which local prisons have been prevented from doing for decades past. Abandonment of short-term custodial sentences would, in addition to easing overcrowding across the entire prisons estate (except the Dispersal Prisons which are protected from it), create ‘regime space’ to allow remaining prisoners to undertake a full eight hour weekday working day of purposeful activities.6 However, in most prisons, staffing levels based on a conditioned 39-hour working week for prison officer grades including meal breaks and adequate searching on entry/exit do not presently allow for this to happen. This situation leads somewhat inevitably to compromises being made in the staff attendance: prisoner core day regime relationship. In particular, the rigorous searching of prison staff and others on entry to and exit from the prison should be a necessary condition of attendance and not reckoned within shift working hours when it effectively shortens the extent of the core regime day.7 We return to this issue in Chapter 8. It will also be evident that a sizeable reduction in the prison population would greatly assist in the elimination of cell-sharing in single cells and create more humane, decent and controllable prison conditions, reducing the levels of prisoner violence and self-harm which have reached record 5 See: https://www.gov.uk/government/news/four-new-prisons-boost-rehabilitation-and-supporteconomy of 28 June 2020 [Accessed 17/7/2020]. 6 Purposeful activities include attendance at workshop or other employment, vocational training, education, recreation and exercise, visitation, religious observance, casework support and supervision, healthcare provision, etc. Meal breaks (breakfast, midday and evening) are normally excluded from the calculation of core day activity hours on weekday working days. 7 Searching of staff, visitors and others on entry and exit is a necessary condition and a core component of security in ensuring the protection of persons and a defence against the importation of contraband items and illegal substances reaching prisoner possession. Where it is only sporadically or perfunctorily performed, it makes the prison insecure and its staff vulnerable to prisoner intimidation.

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levels in recent years as has been previously recorded in this work. For all of these reasons, the case for custodial reduction is irrefutably made on the grounds of morality and expediency.

What Does ‘Doing Justice Better’ Mean? To readers of this work, any answer to this important question is bound to seem equivocal. For as has been apparent throughout this discourse, trends in penological fashion change more from the dictates of political and economic expediency than from moral and ethical considerations and, viewed entirely pragmatically, this situation is unlikely to change in the foreseeable future. However, as Hyman Gross writing over forty years ago described it: More is required, for any enterprise has a purpose, and it is necessary to understand what that purpose is if we are to judge the success of the enterprise, or if indeed we are to decide whether the enterprise is worthwhile. At this point there are serious difficulties, for everywhere criminal justice is strangely uncertain in its goals, and reasons that at first seem to be at odds are offered to explain what is going on. Sometimes it is said that the point is simply to pay the wicked for their wrongdoing; at other times, that correction of those who show themselves to be in need of it is the reason we determine criminal liability. One often hears the view that crimes are punished to show those who have broken the law and those who might be tempted to break it that the law has teeth that bite. And just as often one hears it suggested that the enterprise is carried on to make the community safer by identifying and then removing (or at least watching) those who have shown themselves to be dangerous. It seems reasonable to suppose that each of these has a proper place somewhere among the aims and purposes of criminal justice, but there is little agreement about the proper place of each. This is distressing, for it is important to know what goal it is that causes this curious social pursuit to be carried on everywhere with such dedication that its abandonment is virtually unthinkable. A commercial enterprise similarly unenlightened could not long survive, and certainly could not prosper. (Gross 1979: 4–5)

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Over the intervening period since Gross wrote these words, the criminal justice enterprise in England and Wales has survived with scars to prove it, but can scarcely be said to have prospered unless that prosperity can be measured in terms of the size of the prison population. But at what social and economic cost has this tenuous survival been achieved? Another more recent and similarly perceptive observer has described the contemporary situation from a pan-European perspective in the following terms: Criminal justice seems to me in recent years to have come to resemble an old hospital that should be demolished because it has collected so many viruses that it is, in fact, pathogenic. Some of the viruses that infect criminal procedure have been pointed out by McElrea,8 and they have become present because the focus or aim of criminal procedure is deliberately to cause pain. The root cause is not the desire to do justice, but our misconceptions about, and abuse of punishment. (Blad 2006: 135)

Some of the viruses that have caused the criminal justice process and prisons of England and Wales to become pathogenic have been discussed at some length in Chapter 6: 121 supra. Formation of the Ministry of Justice in 2007 could have provided an opportunity to redeem that situation to a considerable extent, but in a number of respects has made it more acute up to the present time. It is, for instance, a sad reflection that it took the onset of the Covid-19 pandemic and its restrictive effects upon the functioning of the courts, rather than deliberate government intervention, to cause a reduction in the size of the prison population from around 83,000 to some 79,500 in July 2020 (cf. House of Commons, CBP- 04334 2020b, op. cit.: 3). Other and former viral infections in prisons remain untreated in the form of overcrowding, drugs, contraband, violence, self-harm and restrictive staff behaviour. In combination, these present a dation which ableak prognosis for recovery in the immediate future unless or until extensive governmental intervention can be brought to bear on their elimination.

8

In the same volume (Cornwell 2006: 119–134).

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With these considerations in mind, it is possible to be clear about what doing justice better does not mean. At the strategic level it does not mean increasing, but less, more thought-through and carefully evaluated criminal justice legislation. It does not mean more and larger prisons, but less prisoners and making more constructive and disciplined use of the prisons already in existence. It does not mean leaving sentencing policies and judicial discretion immune from necessary executive intervention, but rather the imposition of a legally enforceable prohibition on the occupation of prison places beyond certified levels of normal accommodation.9 It does not mean maintaining an over-sized, centralised, remote and rule-driven bureaucracy at the Prison Service Headquarters level within HMPPS, but its re-organisation to provide a devolved and streamlined command structure allowing Prisons Group Directors and prison governors increased operational authority and autonomy in the management and development of their prisons.10 Doing justice better means that government, the criminal justice process and its constituent elements all have to recognise and accept that both strategic and operational penal reform have now become a necessity in the national interest. There are no longer ‘quick fixes’ available to meet this requirement, and hence the recommendation for a Royal Commission indicated in Chapter 6 at page 121 supra. Apart from the absence of superficial remedies to the present situation, however, lines of enquiry into ways of doing justice better have been available and consistently overlooked or neglected since the early 2000s in the haste of successive governments to implement increasingly punitive penal policies for electoral advantage as this work has shown. Moreover, it has also been made evident that any initiative towards reducing the size of the prison population would have to be accompanied by the development 9 i.e. the level of normal accommodation which a prison was originally designed to hold in an un-crowded state of occupation. 10 If this requirement would be better served by return to a regional structure of Directorates (i.e. North East, North West, Midlands, Wales, South East, London, South West and Long Term/High Security) devolved from HMPS HQ in London, then due consideration should be given to its implementation in place of the smaller Prisons Group structure, and with existing Prisons Group Directors redeployed as Assistant Regional Directors. Specialist functional support (e.g. Healthcare, Psychological Services, SOCT, Custodial Contracts, etc.) should remain centralised at HMPS HQ level.

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of more demanding, constructive and effective non-custodial sanctions if the judiciary were to be convinced to use them as viable alternatives to short-term custody. As Table 7.1 indicates, there is a significant incidence of ex-prisoners being recalled to prison custody in breach of the conditions of their early release on licence (EROL). In mid-2019 there were almost 7,000 such persons in prisons, amounting to 9.5 per cent of the custodial population, many of whom had committed further offences while on temporary release. While it remains a matter of conjecture as to why these people breached their licence conditions, there remains a strong possibility that lack of opportunities for purposeful use of time, supervised skills training and employment within the community may have contributed, at least in part, to their failure. A robust, well-resourced, demanding and disciplined system of community sanctions, combined with rigorous supervision, counselling and skills training is evidently essential if non-custodial measures are to be more effective. There is also a further and important social dimension to this equation which has received too little serious attention in England and Wales in recent years. It can be described as the ‘victim dimension’ for want of an alternative and concise description and is subsumed within the concept of Restorative and Reparative Justice (RJ) of which some explanation is deservedhere.

Reparative and Restorative Justice: The Neglected Link in Contemporary Corrections The necessity for this discussion has already been indicated in earlier chapters (cf. Chapters 4: 59 and 5: 87). The history of Restorative Justice (RJ) reaches back to the late 1970s in the writings of Albert Eglash (1977), and subsequently to those of Zehr (1990/1995], 2002), Wright (1996), Barnett (1977), Van Ness and Strong (2001), Braithwaite (2002), Strang (2002), Walgrave (2003, 2008), Zehr and Toews (2004), Umbreit et al. (2005), Cornwell (2006, 2007, op. cit.), and Cunneen and Hoyle (2010) among others. It has also given its name to a number of

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international publications such as The International Journal of Restorative Justice and the Dutch/Flemish Tijdschrift voor Herstelrecht. RJ is not, therefore, a new concept, but its claims for inclusion within mainstream criminal justice considerations are of a substantial nature which have been down-played by many national governments largely for political reasons, and because it seriously questions the supremacy of the doctrines of traditional criminal justice based predominantly on retribution and deterrence as the primary justifications for criminal punishment. As Howard Zehr, one of the founding figures of the RJ movement elaborated as its foundational principles: • Traditional criminal justice views crime primarily as a violation of the law and the state. Restorative justice perceives crime as a violation of people andrelationships; • Traditional criminal justice insists that violations create guilt. Restorative justice insists that violationscreate obligations; • Traditional criminal justice requires the state to determine blame (guilt) and impose pain (punishment). Restorative justice involves victims, offenders and community members in an effort to put wrongsright; • The central focus of traditional criminal justice is on offenders getting what they deserve. That of restorative justice is on victim needs and offender responsibility for repairing harm (Zehr 2002, op. cit.: 21). Although at first sight such an explanation appears to present a dichotomous or even an antithetical relationship between traditional and restorative justice, on closer examination it may be contended that such is not necessarily the case. Further, that the two approaches to the administration of justice are not entirely mutually exclusive when the seriousness (harm) of offences is the defining and decisive factor in relation to the appropriate extent of the criminal punishmentof the guilty. Most crime originates within communities11 and evidently varies considerably in the extent of the harm that it causes both directly to its 11

With the more obvious exceptions of certain forms of corporate crime and that which has come to be termed cyber-crime (i.e. electronically generated crime) in recent years.

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victims and indirectly within the community in which it is committed. Some crime is viewed as extremely serious in nature, and as a consequence imprisonment becomes the only sentence that can be considered as an appropriate response in relation to the harm caused. Crime of lesser seriousness, when not committed repeatedly, may be more appropriately responded to without resort to imprisonment, and within the communities in which it originates. The communalist approach of Reparative and Restorative Justice (R&RJ) has considerable potential as a means of dealing effectively with such offending, and has a proven record of doing so on a worldwide basis (cf. e.g. Umbreit et al. 2005, op. cit.: 253–304 passim). The starting point for such intervention is that the offender must take responsibility for the harm done, demonstrate genuine remorse for its effect upon those harmed, and a willingness to make some form of reparation for it if such is acceptable to the victim(s) of the wrongdoing. This has to be achieved without re-victimising those offended against who may be reluctant (or even unable) to consider participation in such a process. In such circumstances, however, it may still be appropriate for the offender to make reparation to victims of crime more generally if to do so may be in the interests of crime reduction through avoidance of future recidivism. It should be noted here that where R&RJ initiatives have been trialled and implemented having been accepted as a having positive effect on reoffending, this has been largely confined to the young adult offender populations in which families and close others of offenders can be included in Family Group Conferencing (FGC) and similar involvement, and within indigenous populations in many countries worldwide.12 This emphasis has been particularly strong in New Zealand (McElrea 2013: 81–114 passim; McIvor 2004: 162–165), Australia (Moore and O’Connell 1994; Daly and Hayes 2001),13 and also in Canada in the 12

Including Southern Africa (see: Skelton 2013: 171–186). Here, it may be recalled that at the end of the 1980s John Braithwaite devised a process in Australia for dealing with young adult and other individual and corporate offenders which he termed ‘Naming and Shaming’ as a means of making the illegal behaviours a matter of public knowledge within communities united in their disapproval of them. Far from being a policy of ‘zero tolerance’, the purpose was to discourage the behaviours and thereby re-integrate offenders

13

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similar vein of Circle Sentencing (Bazemore and Umbreit 2001; Cormier 2006: 149–162), and to a limited extent England in pilot form in the Thames Valley involving police and professional participation (McIvor 2004, op. cit.: 165). The same techniques have also been widely used in the USA and positively evaluated in many instances (see, in particular, Umbreit 1998: 1–22; Umbreit et al. 2005, op. cit.: 269–297, 2006: 1–16). As was indicated in earlier chapters, the government in England and Wales appeared to display an interest in RJ in the early years of this millennium, ostensibly in response to the European Union’s Council Framework Decision of 15th March 2001 (cf. 40 supra and fn.28 thereto). However, this interest became submerged in the haste to get the CJA 2003 legislation onto the Statute Book, and in a revival of activity to demonstrate concern for victims of crime in tandem with that legislation. Indeed, deep within CJA 2003 (at Sections 161A and 161B) appeared a statement of intent to establish a ‘victim surcharge’ on all offenders convicted in the criminal courts of England and Wales from a date to be determined later.14 From that point onwards, and in spite of the publication in 2003 of a Consultation Paper Restorative Justice: The Government’s Strategy (Home Office 2003) which was focused predominantly upon issues related to victims of crime, little more was forthcoming about incorporating RJ practices within the mainstream of criminal justice policy-making for almost a further decade. Then, in November 2012 the Ministry of Justice published the first of a series of Restorative Justice Action Plan for the Criminal Justice System documents (Ministry of Justice 2012, 2013, within law-abiding society. See: Braithwaite, J., Crime, Shame and Reintegration, New York and London: Cambridge University Press, 1989 passim. 14 The measure became effective in the Domestic Violence, Crime and Victims Act 2004 to be implemented from 21st March 2007, though initially in relation to Fines only until 2012 when it became applicable to all convictions in courts in England and Wales. The revenue raised was to accrue to a Victims and Witness General Fund (VWGF) under the Powers of the Criminal Courts (Sentencing) Act 2003, Sections 130–133 as subsequently amended in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Section 130(2A) in cases of injury, loss or damage. The Fund was, however, to be used by the Ministry of Justice from 2007 onwards to resource non-governmental groups and charities offering advice and counselling services to victims of crime and witnesses in criminal cases, and not for the compensation of victims suffering loss or personal injury arising from criminal acts.

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2014, 2015, 2016a and 2017), the latter of which covered the period up to March 2018. In every instance the Plans were focused predominantly towards victims and the services available to them,15 the involvement of Police and Crime Commissioners (PCCs), the Victims’ Commissioner, and the voluntary sector providers of the services financed largely by PCCs. The Action Plans make little or no reference to the use of RJ in prisons,16 or of its potential use in diverting less serious offenders from court processes towards mediated outcomes in the community setting through Victim: Offender Mediation (VOM), Family Group Conferencing (FGC) or other RJ interventions,17 or the possible involvement of the Probation Service in such processes.18 The same critical observation applies also to the House of Commons Justice Committee’s Fourth Report of Session 2016-17: Restorative Justice (HC164 of 19 July 2016) and the Government Response to that Report (Ministry of Justice 2016b November). All of these considerations seem to point towards the conclusion that the RJ movement, with its considerable potential to enhance the effectiveness of the criminal justice process alongside the formal courtdriven provisions for dealing with offenders, has been ‘cherry-picked’ and subverted somewhat cynically to meet political purposes rather than those of doing justice better. Victims of crime attract public sympathy, and justifiably so: criminal offenders attract public opprobrium, but still have the right to the means of restoration. Offenders are the fodder of the criminal justice process: victims are its unintended consequences. RJ could have been harnessed to a deliberate policy of bridging the ‘custody: community’ gap which presently exists between the custodial and non-custodial sectors of criminal justice in England and Wales, and 15 To the extent of almost £30 m by 2013/14 raised from offenders to fund RJ services in 2014–16, of which some £23 m was allocated to PCCs to build RJ capacity and deliver pre-sentence and victim initiated RJ (Ministry of Justice 2014: 4). 16 Here see, for instance, T. Newell and Edgar, K., Restorative Justice in Prisons: A Guide to Making It Happen, Winchester: Waterside Press, 2006. 17 Also, D.J. Cornwell (2018, op. cit.: 129–142). 18 Particularly in relation to liaison with the Crown Prosecution Service in relation the prosecution of persons charged by the police at the pre-trial stage with a view to diversion of less serious offenders from formal court processes towards mediated reparative RJ processes.

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between its two main constituent elements the Prison and Probation Services. There is a considerable potential for the development of RJ principles and processes in prisons, and also to incorporate the same within the community justice sector of corrections. However, the two sectors overlap to an important extent in the transition of prisoners from custody to community supervision towards the expiry of their time in prison custody. In the interests of reducing post-sentence recidivism this is a critical period which at the present time lacks a coherent structure. The formation of HMPPS in 2017 should have brought with it the intention and commitment of the government to undertake a radical re-appraisal of the structural and operational relationship between the two Services. To many observers of the penal process itappears illogical and altogether surprising that the opportunity was not taken to create an entirely integrated Department of Correctional Services as a visibly uniformed organisation with a devolved regional or provincial structure. There were, however, three main obstructions to be overcome in order to make such a reform possible. The first is the commitment of the present government to continue to build more and larger prisons, possibly unnecessarily in the event of the abandonment of short-term imprisonment. The second is the lack of a common geographical structure between the Prison and Probation Services at the operational level. The third is the failure hitherto to resource and establish the necessary network of Community Justice Centres to ensure the efficient and effective operation and supervision of the range of non-custodial sanctions imposed by the courts.19 Such Centres, if operated in a visibly disciplined manner, could give the courts increased confidence in the use of community sanctions and reduce reliance on short-term custody to a considerable extent. In the next chapter, the focus of attention returns to the future operation of prisons in the context of the existing situation described in this chapter and those preceding it. It must surely be evident that reformof the conditions in which prisons presently operate is considerably overdue, but to discern how such reform should be approached must 19

Including Probation, Suspended Sentence and Licence Supervision, Electronic and Curfew Monitoring, Addiction Counselling, Community Service and Reparation Projects, Employment Skills Training, and Community Participation.

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take into consideration the wider concerns about the functioning of the entire criminal justice process as the 2020s begin, of which prisons are a vital component. This chapter has highlighted a range of these concerns that filter down to affect the day to day operation of prisons themselves. More than this, however, it will be necessary to question, as did Hyman Gross quoted earlier (cf.: 71 supra), precisely what social purpose, other than the temporary incapacitation of offenders, is served by maintaining so many prisons in their present state. And further, as Pat Carlen (2012 passim) has questioned, whether rehabilitation—so often claimed in the political rhetoric to contribute to that purpose—is either realisable or appropriate as a response to offending in the criminal justice context.20

References Barnett, R.E. (1977) ‘Restitution: A New Paradigm for Criminal Justice’, in 87 Ethics: 279–301. Also available at: http://scholarship.law.georgetown/fac/ 1558. Bazemore, G. and Umbreit, M.S. (2001) A Comparison of Four Restorative Conferencing Models, Washington, DC: Office of Juvenile Justice and Delinquency Prevention Juvenile Justice Bulletin. Blad, J.R. (2006) ‘The Seductiveness of Punishment and the Case for Restorative Justice—The Netherlands’, in D.J. Cornwell (ed.), Criminal Punishment and Restorative Justice: Past, Present and Future Perspectives, Winchester: Waterside Press, pp. 135–148. Braithwaite, J. (2002) Restorative Justice and Responsive Regulation, Oxford: Oxford University Press. Carlen, P. (2012) Against Rehabilitation: For Reparative Justice, [2012 Eve Saville Lecture], London: Centre for Crime and Justice Studies, (November). Carter of Coles (Lord). (2007) Securing the Future: Proposals for the Efficient and Sustainable Use of Custody in England and Wales, London: House of Lords, (December).

20

See P. Carlen, Against Rehabilitation: For Reparative Justice, [2012 Eve Saville Lecture], London: Centre for Crime and Justice Studies, 2012 (November).

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Carter, P. (2003) Managing Offenders, Reducing Crime: A New Approach, London: Home Office Strategy Unit. Cormier, R.B. (2006) ‘Where There’s a Will There’s a Way: A Canadian Perspective on Restorative Justice’, in D.J. Cornwell (ed.), Criminal Punishment and Restorative Justice, Winchester: Waterside Press, pp. 149–162. Cornwell, D.J. (2006) Criminal Punishment and Restorative Justice: Past, Present and Future Perspectives, Winchester: Waterside Press. Cornwell, D.J. (2007) Doing Justice Better: The Politics of Restorative Justice, Winchester: Waterside Press. Cunneen, C. and Hoyle, C. (2010) Debating Restorative Justice, Oxford and Portland, Oregon: Hart Publishing. Daly, K. and Hayes, H. (2001) Restorative Justice and Conferencing in Australia, Trends and Issues in Crime and Criminal Justice No.186 , Canberra, ACT: Australian Institute of Criminology. Eglash, A. (1977) ‘Beyond Restitution: Creative Restitution’, in J. Hudson and B. Galway (eds.), Restitution in Criminal Justice, Lexington, MA: D.C. Heath and Company. Esmée Fairbairn Foundation. (2004) Crime, Courts and Confidence: Report of an Independent Inquiry into Alternatives to Prison, [The Coulsfield Report], London: The Stationery Office. Gross, H. (1979) A Theory of Criminal Justice, Oxford: Oxford University Press. Home Office. (2001) Review of the Criminal Courts in England and Wales, [The Auld Report], London: Home Office. Home Office. (2001) Review of the Sentencing Framework, Making Punishments Work, [The Halliday Report], London: Home Office Communications Directorate. Home Office. (2003) Restorative Justice: The Government’s Strategy, London: Home Office. House of Commons Library. (2020a) Briefing Paper Number 5199—Release from Prison in England and Wales, [Compiler: J. Beard], London: House of Commons, (24 January). House of Commons Library. (2020b) Briefing Paper, CBP-04334—Prison Population Statistics, [Compiler: G. Sturge], London: House of Commons, (3 July). McElrea, F.W.M. (J) (2013) ‘Restorative Justice as a Procedural Revolution: Some Lessons from the Adversary System’, in D.J. Cornwell, J.R. Blad and M. Wright (Eds.), Civilising Criminal Justice: An International Restorative Agenda for Penal Reform, Hook, UK: Waterside Press, pp. 81–114.

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McIvor, G. (2004) ‘Reparative and Restorative Approaches’, in A.E. Bottoms, S. Rex and G. Robinson (eds.), Alternatives to Prison: Options for an Insecure Society, Cullompton, Devon: Willan Publishing, pp. 162-194. Ministry of Justice. (2012) Restorative Justice Action Plan for the Criminal Justice System, London: Ministry of Justice, 2012. [Also same title for 2013, 2014, 2015, 2016 and 2017]. Ministry of Justice. (2013) Transforming Rehabilitation: A Strategy for Reform, [White Paper]. London: Ministry of Justice. Ministry of Justice. (2014) NOMS Business Plan 2014–2015, London: Ministry of Justice. Ministry of Justice. (2016a) Story of the Prison Population 1993–2016 , London: Ministry of Justice. Ministry of Justice. (2016b) Government Response to the Justice Committee’s Fourth Report of Session 2016–17: Restorative Justice, London: Ministry of Justice, (November). Ministry of Justice. (2019a) Offender Management Statistics Bulletin, England and Wales, London: Ministry of Justice, (July). Ministry of Justice. (2019b) Costs per Prison Place and Cost per Prisoner by Individual Prison Establishment, 2018 to 2019, Table 42, London: Ministry of Justice. Ministry of Justice. (2019c) Proven Reoffending Statistics, July to September 2017 , London: Ministry of Justice. Moore, D. & O’Connell, T. (1994) ‘Family Conferencing in Wagga Wagga: A Communitarian Model of Justice’, in C. Alder & J. Wundersitz (eds.), Family Conferencing in Juvenile Justice: The Way Forward or Misplaced Optimism? Canberra, ACT: Australian Institute of Criminology. Prison Reform Trust. (2019) Prison: The Facts, [Bromley Briefings Summer 2019], London: Prison Reform Trust. Skelton, A. (2013 op. cit.) ‘Civilising Criminal Justice’, in D.J. Cornwell, J.R. Blad and M. Wright (eds.), Civilising Criminal Justice, Hook, Hampshire UK: Waterside Press, pp. 171-186. Strang, H. (2002) Repair or Revenge: Victims and Restorative Justice, Oxford: Clarendon Press. Tonry, M. (ed.) (2003), Confronting Crime: Crime Control Under New Labour, Cullompton, Devon: Willan Publishing. Umbreit, M.S. (1998) ‘Restorative Justice Through Victim-Offender Mediation: A Multi-Site Assessment’, Western Criminology Review, vol. 1(1): 1-28.

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Umbreit, M.S., Vos, B. and Coates, R.B. (2006) Restorative Justice Dialogue: Evidence-Based Practice, University of Minnesota: Center for Restorative Justice & Peacemaking, pp. 1-16. Umbreit, M.S., Vos, B., Coates, R.B. and Lightfoot, E. (2005) ‘Restorative Justice in the Twenty-First Century: A Social Movement Full of Opportunities and Pitfalls’, in Marquette Law Review, vol. 89(2), Winter: 251–304. Van Ness, D. and Heetderks Strong, K. (2001) Restoring Justice, [2nd Edition], Anderson. Walgrave, L. (2008) Restorative Justice, Self-Interest and Responsible Citizenship, Cullompton, Devon: Willan Publishing. Walgrave, L. (ed.) (2003) Repositioning Restorative Justice, Cullompton, Devon: Willan Publishing. Wasik, M. (2004) ‘What Guides Sentencing Decisions?’ in A. Bottoms, S. Rex and G. Robinson (eds.), Alternatives to Prison: Options for an Insecure Society, Cullompton, Devon: Willan Publishing, pp. 290-312. Woolf, H. (LJ) and Tumim, S. (J) (1991) Prison Disturbances April 1990, Cm.1456, London: HMSO. Wright, M. (1996) Justice for Victims and Offenders, [2nd Edition], Winchester: Waterside Press. Zehr, H. (1990/1995) Changing Lenses: A New Focus for Crime and Justice, Scottdale, PA: Herald Press. Zehr, H. (2002) The Little Book of Restorative Justice, Intercourse, PA: Good Books. Zehr, H. and Toews, B. (eds.) (2004) Critical Issues in Restorative Justice, Monsey, New York: Criminal Justice Press, and Cullompton, Devon, UK: Willan Publishing.

8 Making Prisons Fit for Purpose

Defining the Purpose of Prisons Since 1989 the work of the Prison Service of England and Wales has been subsumed within its widely advertised Statement of Purpose which reads as follows: Her Majesty’s Prison Service serves the public by keeping in custody those committed by the courts. Our duty is to look after them with humanity and help them lead law-abiding and useful lives in custody and after release.

In view of all that has been adduced in the foregoing chapters of this work this Statement, taken in the contemporary situation of prisons, raises a number of contentious issues. First, although the opening sentence appears to be sufficiently unexceptionable in an operational sense of secure and exclusionary containment, it is evident that public attitudes towards prisons and imprisonment are variable, to a considerable extent uncertain, and widely uninformed as to the conditions within

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prisons (Mattinson and Mirrlees-Black 2000; Hough and Roberts 1998; Easton and Piper 2016). The second issue concerns humanity, and the morality of maintaining a prison system with a high incidence of overcrowding, drug availability, violence and self-harming behaviour. These four symptoms of potential and actual disorder make prisons inhumane places for prisoners and prison staff alike, a situation which is exacerbated by reduced regime opportunities, largely resulting from over-population, with its resulting effects upon internal security and the necessary supervision of prisoners. The third concern is closely related to the preceding one insofar as the rehabilitative potential of prisons is concerned. Ever since the 1970s and the collapse of the ‘rehabilitative ideal’ noted formerly in this volume, doubts have existed as to the capacity of prisons to change criminal lifestyles in a secluded institutional environment without coercive influences infecting such a process. The ‘Rehabilitation Revolution’ inspired by Kenneth Clarke as Justice Secretary in 2010, disintegrated in disarray as a result of internecine disquiet within the Cabinet and Parliament over its implications for electoral credibility, and with its demise other distractions such as the ill-considered and short-lived outsourcing of post-sentence supervision prevailed (see particularly: Easton and Piper 2019 passim). In 2019 the Parliamentary Justice Committee carried out an inquiry into the Role of the Prison Officer and concluded: During the inquiry it became very clear that a definition of the role of the prison officers is contingent upon the wider and deeper question of the aim(s) and purpose(s) of prison within the wider criminal justice system. Professor Andrew Coyle told us that the role of the prison officer could only be understood if the purpose of imprisonment was clear, and that remained a matter of debate: “In general terms, we are fairly clear about the purpose of most of the large institutions in our society: the school, for example, is there to educate young people, the hospital is there to heal people who are sick. There is no similar clarity about the role of the prison.”

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There is a problem within the criminal justice system more generally, as we have pointed out on a number of occasions, most recently in relation to the work of the Crown Prosecution Service and in relation to the proposed Sentencing Council. There is an urgent need for clarity of purpose for the criminal justice system as a whole in order for there to be clarity of purpose for different institutions within it and clarity about how they should relate to each other. Nowhere is this more urgent than in relation to the role of prison. (Justice Committee 2019: 1)

The Justice Committee was entirely justified in drawing this situation to the attention of Parliament, and to the wider constituency within the criminal justice process. It has to be remembered that the Prison Service, in the absence of any legislative safeguards to control its own workload or extent of overcrowding is the terminus of the custodial sentencing process, being bound by law to admit all persons committed by the courts and for whatever period of time they are committed.1 Just as importantly, it surely cannot be imagined that prisons occupied beyond their design capacity can enable prisoners to lead useful lives either in custody or on release. The logistical resources of overcrowded prisons to provide purposeful daily employment or training for all prisoners become overstretched, resulting in many inmates having to spend lengthy periods of the working day locked in cells and idleness.2 To make matters worse, sentencing practices in England and Wales since the mid-1990s have resulted a greater proportion of prisoners serving much longer terms of imprisonment than was common in preceding years, and this proportion is currently increasing (Crewe et al. 2019; Prison Reform Trust 2019: 9). This development, as the Prison 1 A number of Western European countries have legislated to prevent overcrowding of prisons beyond levels of certified accommodation (Cf. Table 6.1 fp. 57). Notably, these nations include Norway, Austria, The Netherlands, Germany and Spain. 2 Even supposing that prior to overcrowding the majority of Training Prisons had the capacity to provide regimes of full and purposeful daily employment or training for all prisoners which was far from the case. Difficulty in attracting contracts for semi-skilled work into prisons was a perennial problem in the 1960s and onwards due to widespread unemployment within the British economy and Trades Union intervention. Prison Industries and Farms (PSIF) resolved this in part by installing textile workshops in prisons to manufacture prisoner uniform items of clothing until the compulsory wearing of prison uniform was largely abandoned in the mid-1980s and onwards.

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Reform Trust have indicated, ‘virtually guarantees that our prisons will remain overcrowded for the foreseeable future, regardless of any changes in sentencing practices for less serious offending or improvements in reconviction rates’ (Ibid.).3 Of further note is the fact that according to the Prison Service’s own auditing process for assessing the qualitative performance of prisons against regime baseline standards (Prison Performance Ratings), an increasing annual deterioration has occurred since 2012–2013. In 2018– 2019, 38 per cent of prisons were rated as ‘of concern’ (24 prisons) or ‘of serious concern’ (16 prisons), compared with 13 per cent (15 prisons) that achieved the highest ‘exceptional’ rating (Ministry of Justice 2019). HM Inspectorate of Prisons (HMCIP) inspections over the same period revealed a similar pattern of deterioration in respect of the criteria for Safety and Purposeful Activity assessed during their visits (HMCIP 2019). Against this sombre snapshot of the present situation within the prisons of England and Wales at the turn of this decade, it becomes difficult to envisage any short-term revival within a system that is, with the single exception of preventing escapes from custody, demonstrably ‘unfit for purpose’ whatever that purpose now is. ‘Warehousing Justice’ seems to be a more apposite description of the social role that the Prison Service has been constrained into fulfilling, and humanity of care—however well-intentioned—has become almost vestigial due to the pressures that the criminal justice process has imposed on its functional performance. Returning to John Blad’s analogy of the viruses affecting the criminal justice process and prisons in particular (cf. Chapter 7: 147 supra), uncertainty about the purposes of criminal punishment and sentencing policies beyond incapacitation, and neglect in relation to the development of morepurposeful and reparative alternative community sanctions, have dominated the penological landscape since the early 1990s. These have also been the political ‘drivers’ of the overcrowded prison population to a significant extent. Failure to drive down the use of short prison 3

In the year to June 2019, some 56,000 offenders were sent to prison, the majority (67 per cent ) having committed non-violent offences. Almost half of these people (46 per cent ) were sentenced to serve six months or less, and the re-offending rate for sentences of twelve months or less within one year of release was 63 per cent (Prison Reform Trust 2019, op. cit.: 10).

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sentences has exacerbated this situation through widespread ignoring of the Ultima Ratio principle in instances in which this could have been avoided.4 As was suggested in the same chapter (cf. 69–70 supra), only a deliberate policy of reduction in the shorter-sentenced sector of the penal population provides any prospect of bringing relief to the prisons and making imprisonment more purposeful in England and Wales. Removal of the un-convicted remand population from prisons to alternative secure accommodation, in combination with more stringently applied criteria for recalling ex-prisoners and re-sentencing those breaching the conditions of community punishments, would positively assist in such a process. Each of the foregoing considerations makes the problem of defining the purpose of prisons in the present era and circumstances difficult to resolve. It can be stated with certainty that prisons exist to keep in secure custody those committed by the courts having been convicted of crime and sentenced to imprisonment. To which might be added: our purpose is to contribute towards reduced crime, and to persuade those imprisoned to refrain from re-offending on their release. But is this sufficiently expressive of a purpose, and if not, what does it neglect? The traditional literature on prisons is considerable, and until the 1990s was dominated by predominantly sociological explanations of prison functioning (e.g. Morris 1974; Wiles 1976; Hawkins 1976; Wolfgang 1979; Fitzgerald and Sim 1982; Garland and Young 1983; Rutherford 1986; among many others in Britain and America). However, as John J. DiIulio (1987) indicated in a seminal work on prison management in America, there was a dearth of similarly reliable research in the ‘political science of criminal justice’ which, had it been available during the 1990s, might have forestalled the onset of the managerialist impact on public services provision in that particular era and discussed in Chapter 3 (at 35 and passim). A rigorous politically scientific approach to criminal justice and imprisonment in the 1990s would have meticulously evaluated both 4 The ultima ratio principle in relation to the use of imprisonment insists that it should be used as the measure of last resort when all other alternative sanctions have been fully considered and deemed insufficient to meet the gravity of offences.

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the cost: benefit implications of privatisation within the criminal justice process, and would have revealed the tensions between the ‘control’ and ‘rehabilitative’ expectations of prisons thereafter. Failure to adopt such an approach opened the way to prison overcrowding rather than reduction, and effectively consigned the notions of ‘humanity’ and ‘assistance’ in the second part of the 1989 Statement of Purpose to an aspirational rather than an operational level.

Making Prisons More Purposeful DiIulio’s study of prisons and prison management in three different American State administrations (Texas, Michigan and California), though in some traditional and cultural senses somewhat atypical of the contemporary situation in England and Wales, contains many insights and analyses of value to this particular work. First, it was the work at the time of writing of a Professor of Political and Public Affairs at Princeton University, and a Consultant to a number of state and local corrections agencies, though without first-hand experience as a correctional professional. Second, his analysis is pragmatic, methodologically sound, and uninfluenced by preconceptions of correctional practices and the quality of their delivery. Third, Governing Prisons was a study at every level of the organisations investigated from that of the state down to that of correctional officers. Many of the prisons visited displayed symptoms of the same dysfunctional features that affect our own prisons: overcrowding, poor structural conditions, squalor, violent behaviour, restricted and under-resourced regimes, and externally imposed budgetary controls. His analysis was based upon three principal criteria: ‘Order, Amenity and Service’: by Order, he implied the presence or absence of assaultive, threatening and dangerous behaviour and disorder; by Amenity the quality of life available to prisoners; and by Service the extent of purposeful activities and training available to improve their prospects of crime-free survival on

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release.5 In short, he defined a ‘good’ prison as one that provided as much of the three criteria as possible given its human and financial resources. It is interesting to note, however, that his work includes no reference to drugs cultures in the prisons studied: by inference an indication that most American prisons at that time had no significant problems associated with drug importation.6 DiIulio also found that at the strategic (State) level of the correctional services structure, the three states selected for study (Texas, California and Michigan Departments of Corrections—hereafter TDC, CDC and MDC) were the first, second and fifth largest in the country, and each operated different models of custodial correctional practice. All three were overcrowded and operating under court orders. Texas prisons ran on a ‘control model’ that emphasised inmate obedience, work and education: Michigan prisons ran on a less paramilitary ‘responsibility model’ involving inmate classification and elaborate grievance procedures: and California prisons ran on a mix of both models—closer to Texas on some dimensions (paramilitary operations) while closer to Michigan on other others including inmate grievance procedures (Ibid.: 5). The study took almost three years to complete and yielded a number of conclusions about prison management which, while specific to the three Departments mentioned, have resonance for the governance of prisons in most, if not all, democracies. Some are as follows: Prison officials can form a government behind the walls that produces safe, civilised conditions. These officials are neither pawns of inmate society nor captives of broader socio- political developments. Prisons are no more likely to fail than are schools, armies, state hospitals, regulatory agencies, or other important public organisations. If most prisons have failed, it is because they have been ill-managed, under-managed, or not managed at all. (Ibid.: 6–7) 5 Here it has to be conceded that there are distinctive traditional and cultural differences between the administration of prisons in the USA and England and Wales, although the issue of the ‘governability’ of prisons and their strategic management is common to both nations. The problem of policy-making by ‘remote control’ is, however, a feature of penological practice on either side of the Atlantic Ocean. 6 Predominantly in terms of remedial education, vocational training, and programmes addressing offending behaviour.

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This: There is nothing inherent in the nature of prisons or their clientele that makes better prisons impossible. There is nothing about spending money, hiring more staff, erecting modern buildings, increasing hours of formal training, or reducing inmate populations that makes better prisons inevitable. Low levels of order, amenity and service in prisons are neither expressions of amorphous social forces (internal or external) nor by-products of public apathy or the insensitivity of corrections officials. Poor prison conditions are produced by observable and, it appears, remediable defects in the way that prisons are organised and managed. (Ibid.: 235) This: Organisations, public or private, will normally succeed or fail according to whether pains have been taken to combine good workers with sufficient resources under the right conditions. (Ibid.: 236) And this: Based on our explanatory study of correctional institutions in three states, it appears that there is some relationship between administrative structure and prison conditions. The proper unit of analysis, however, is less the correctional agency as a whole and more the prison itself; not who reports to whom at headquarters, but who works (and) how in the institutions. (Ibid.: 237)

Each of these observations seems to contain a pearl of wisdom in relation to correctional service administration and prison management. The reader may do well to pause and consider their implications for establishing the true purpose of prisons. The measures of Order, Amenity and Service, when adopted and adapted in the context of prisons in England and Wales, inform governors, managers and supervisors of the extent to which any prison is fit for its designated purpose. Prisons in which assaults are frequent,

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weapons are used, drugs are available, and prisoners seek refuge in segregation units, indicate that control is weak, that security and searching procedures are compromised, and that routine supervision is inadequate. Similarly, where cells, communal areas and food service accesses are not kept scrupulously clean and inspected, necessary hygiene standards are not being met on a routine basis. When prisoners are not fully occupied on a daily basis with access to work, training, recreation or educational opportunities, and locked in cells during the working day, it is evident that regime provision is inadequate or under-resourced. Failing prisons are those in which these measures are not fully met and corrective action has been ignored or overlooked at the managerial level. Much about the fitness of prisons for purpose may be gained from the evidence of their managerial behaviour on a routine basis. The daily work of prison officers in contact with prisoners is demanding, sometimes stressful, and vulnerable to manipulation and ‘conditioning’.7 They need not only immediate support and observation in their compliance with procedures from their supervisors, but also the regular presence of more senior managers for recognition of their contribution to the safety and security of the establishment. Managers who become remote and desk-bound with paperwork in their offices become extensions of the ‘headquarters’ structure, and distanced from the realities of life at the ‘coal-face’ of prisons. It also blunts what skills they may have in communicating with staff and prisoners, and deprives them of an innate ability to gauge the daily-changing mood and ‘temperature’ of the prison and its inhabitants. This can, in turn, lead to flawed decision-making in dealing with and responding to incidents and emergencies within the establishment. ‘Gaol-craft’ is accumulated through the experience of daily working in prisons, an understanding of inmate behaviours and of the tensions that affect staff and prisoner relations in a confined environment. It is not 7

The term ‘conditioning’ in this context refers to the process by which manipulative prisoners will attempt to degrade the performance of routine duties by prison staff, lower standards of vigilance, encourage them to overlook minor infractions of rules, or fail to correct unacceptable or illegal behaviour. Frequently, prisoners will attempt to create ‘no go’ areas in prisons for the purposes of drug dealing and other forms of illegal conduct where prison staff become reluctant to impose adequate routine supervision due to aggressive, threatening or coercive prisoner behaviour.

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learned from textbooks other than in a rudimentary sense, but rather from the development of an instinctive understanding of what makes good prisons function well and bad prisons fail. Prisons can be overmanaged as easily as they can be under-managed, and gaol-craft enables the delicate balance between the two to be maintained and the purpose of the establishment to be delivered.

Centralisation and Devolution in Prison Governance To the same extent that prisons can be over- or under-managed, so also can entire prison systems. The impact of the managerialist ideology on public sector organisations from the late 1980s and onwards (cf. Chapter 3 supra) significantly increased centralisation of essential public services and the diminution of regionally structured autonomy in their delivery. It also considerably increased the size of the bureaucratic management structures at the centre, while reducing or eliminating those in the provinces of England and Wales. While centralisation could be claimed to have increased standardisation of delivery of services and reduced logistical costs, it remains questionable whether it increased efficiency and quality of delivery. Insofar as the Prison and Probation Services were concerned, centralisation resulted in major organisational restructuring of both Services. In the case of the Prison Service it resulted in the abolition of the regional structure of prison management in 1987, and its replacement by a more diffuse area-based geographic structure administered from the centre. In that of the Probation Service, it led to the eventual abolition of the formerly independent Area Probation Trusts and the creation of the National Probation Service in 2001. The regional structure of the Prison Service had been set up in 1969– 1970 as the result of an internal management review. The Report of the Committee of Inquiry into the UK Prison Services (Home Office 1979, op. cit.) had unequivocally endorsed the regional model, recommending the devolution of increased autonomy in operational decision-making to the regions from the London Headquarters (Ibid.: 96–103 and

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279–280), yet only seven years later the decision was taken (Home Office1986) to abolish the regional structure in its entirety in favour of increased centralisation and a new area-based structure with considerably reduced autonomy in operational decision-making. The decision was consistent with the managerialist ethos gaining the ascendancy in what became known as ‘New Public Management’ (Enteman 1993; Klikauer 2013) during the late 1980s and onwards. And so in 1987, four Regional Directors disappeared and eight Area Managers emerged to supervise the newly geographically grouped prisons of England and Wales. Most were former Governors Grade 1 appointed to Civil Service Deputy Director (SCS1) Grade rank, while a few of them remained Governors Grade 1 appointed as Area Managers of smaller Areas. Finally, to complete the record, in 2014–2015 a further re-grouping of prisons took place creating some sixteen Prison Group Directors with oversight of even smaller geographically dispersed Prisons Groups throughout England and Wales in advance of the formation of HMPPS in 2017. The point at issue here is that throughout this successive process of re-shuffling and re-aligning the management of prisons, the operational autonomy of prison governors has been eroded by the process of centralising decision-making authority and innovative initiative away from the prison and towards the London-based Headquarters of the Prison Service. This has transformed what DiIulio and others have described as the ‘art’ of prison governance into a more mechanical process which has made progressive and developmental prison management considerably more difficult to undertake. The increasingly centralised bureaucracy and the proliferation of manuals, procedures, written instructions, demands for statistical information, and budgetary control analysis has imposed a previously unimaginable workload burden on managerial time within prisons, to the detriment of managers engaging regularly in participative management by walking about (MBWA). Above all else, prison staff, their supervisors, managers and governors require and deserve strong and immediate support and leadership from directors with lengthy experiences of working at every level within prisons. The regular presence of these senior officials making scheduled and unannounced visits to their establishments is critical to the

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maintenance of performance standards and the detection of operational problems before or when such arise and affect the effectiveness of procedures and routines beyond the capacity of the prison itself to resolve. The corollary of this situation is that many of those who determine policies at the strategic level of organisations such as the Prison Service, and other similar state functions, may not have had prior or first-hand experience of working at the operational front-line level of the Services they administer. The same is frequently the case with Ministers who, on taking up their posts, may have to rely on the advice of their senior civil servants to guide their recommendations to their Cabinet colleagues and to parliament. In recent decades there has been an increasing reluctance on the part of senior civil servants to consult widely with the academic and professional communities whose expertise could be invaluable in framing appropriate policies. This is often because the advice they might and should receive could be contrary to, or critical of the nature of the policies they are minded to recommend. The framing of much of the sentencing legislation within CJA 2003 for the ISPP and ESPP provisions provides a vivid example of just such a situation as has been shown in Chapters 4 and 5 of this work. Its outcomes had a manifestly damaging effect upon the operation of prisons in perpetuating overcrowding which has persisted to the present time. Making prisons fit for purpose will now rely upon remedial measures being implemented at both the strategic and operational levels of the criminal justice process. Much could and should be done urgently to improve the performance of prisons, too many of which are failing or in imminent danger of doing so. That cannot be achieved unless or until deliberate policies of reform and reduction are set in place in this and other areas of the wider justice arena in which the viruses identified in Chapter 6 are also embedded. The time is now past for retrospective recriminations over the failures of former years save to learn a new wisdom derived from them. The penology of the past is mired in a tangled web of erroneous and inept political behaviour, ill-conceived policy-making based on supposition, partisan ideological assumptions and false premises, and failure to invest in and learn from

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rigorous and focused methodological research to inform enlightened future decision-making. But as to the purpose rather than the operation of prisons, the foregoing discussion has yielded less of substance than might have been hoped for. Unfortunately, contemporary criminal punishment philosophy beyond the retributive incapacitation of serious (and many less serious) offenders offers even less to inspire confidence, but incapacitation remains largely unchallenged in default of more compelling explanations. Deterrence theories have been exposed for their suppositional nature, but continue to occupy a space in the minds of the judiciary and some others even though their efficacy is unfathomable. Faith in the rehabilitative ethic, insofar as imprisonment is concerned, has waxed and waned in a cyclic manner, and waned most recently due to recurrently high recidivism statistics. The simpler notion of reform (however expressed) has passed almost into desuetude. It is to a revived conception of induced attitudinal change8 that the remaining part of this chapter is devoted.

Re-conceiving a Reformative Ethic The starting point in this discussion is a reflection back to Pat Carlen’s Eve Saville Lecture in November 2012 (cf. 76 supra) in which she so correctly identified the absurdity and dishonesty of the ‘neo-rehabilitative revolution’ proposed by the Conservative Justice Secretary Kenneth Clarke in 20109 and followed by his successor Chris Grayling in the Offender Rehabilitation Act 2014 and the disastrous ‘CRC Experiment’.10 For all the reasons and observational criticisms cited by Carlen 8

The reader will note that the term ‘induced attitudinal change’ as intended here refers to the range of penal ideas and practices designed to modify or transform criminal into lawabiding behaviour. It differs from formerly articulated concepts of Behaviour Modification (see: Farrington 1983: 19–20; Trasler and Farrington 1979) which became critically questioned in the 1980s as coercive to an unacceptable extent. 9 And subsequently abandoned by Prime MinisterDavid Cameron’s Cabinet in 2011. 10 The arrangements to out-source post-sentence Probation supervision of ex-prisoners and low or medium risk offenders to private sector Community Rehabilitation Companies (CRCs) which were subsequently abandoned from December 2019 onwards (cf. Chapter 5 at 87 supra).

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in her lecture, the revival of a rehabilitative ethic in an era of manifestly retributive and incapacitative justice and sentencing was disingenuous in the extreme. Although historically within penology in Britain there has existed a tendency to cite the purposes of rehabilitation and reform as though the two amounted to a single proposition, it will be suggested inthis analysis that these concepts differ considerably in nature and intention. It is to the latter alone that the focus of this discussion is devoted. As Dermot Walsh (1983: 195) observed, by reform is really meant to ‘improve’, and most contemporary dictionaries concur with this primary assertion or definition. For our purposes here, this raises the question of how this assertion might be given a positive context within a present-day conception of penology and the purpose of prisons. It seems reasonable to suggest that it is possible to conceive of a prison designed in functional terms to deliver a regime that is un-crowded, humane, decent, clean, safe, strictly disciplined, controlled, efficiently administered and constructively purposeful on a daily basis. A prison respectful of all persons as individuals, and within which acceptable standards of inter-personal behaviour, cleanliness and conformity with rules are insisted upon. A place within which illegal narcotic substances are made unavailable, and the use of tobacco is restricted to outdoor exercise areas only, and prohibited within buildings and cellular accommodation. Such a prison would provide accommodation with single cell occupation, integral sanitation, and separate dining areas, outdoor and indoor sport and fitness facilities, healthcare and multi-faith centres, and occupational workshops, educational and vocational training accommodation, including horticulture areas. The visitation centre would be designed on a non-contact basis, with prisoners and their visitors allocated to booths separated by polycarbonate screens incorporating voice communication access. Privileges within such a regime would be few and strictly earned, personal possessions limited to a short list of approved items stored in a built-in wardrobe or locker when not in use, and in-cell television restricted to viewing outside working hours daily, during the evenings, and at weekends only. Every prisoner would have a weekly interview and counselling session with a member of staff11 to monitor and discuss

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progress planning, employment and personal concerns. Each prisoner would be issued on arrival with an overall-type uniform and trainerdesign footwear, supplemented with T-shirts, pullover, under-garments, socks and pyjamas laundered weekly within the prison. Any protective clothing or footwear required for working purposes would be issued by the department concerned. The Prison Shop would also be available to prisoners on a weekly basis to purchase toiletries and a limited range of edible goods, soft drinks, tobacco, etc., from prison earnings only. Any items of personal clothing or effects on arrival and not permitted to be held in possession within the prison would be placed in the prisoner’s stored property in the Admissions/Reception area of the prison. All newly admitted prisoners would undergo a period of Induction Training and Employment Assessment in the Induction Unit prior to being allocated to a permanent Residential Unit. This brief introduction should provide the reader with an overview of the nature of the prison suggested to fulfil a reformative role. The essential ingredients are a disciplined, controlled, demanding and focused environment enabling inmates to reflect on their former offending conduct and its consequences for themselves, their close others and those offended against. More than this, however, the purposefully brisk, no-frills, instructive and relatively Spartan regime design with its requirements for regular work, and strictly enforced behavioural compliance combined with counselling and vocational training opportunities, might assist them to contemplate the possibilities of, and preference for an eventually crime-free lifestyle on their eventual release. It should be a prison to which they will have no wish to return once restored to the freedoms of normal society, and with improved potential for lawful survival and responsible citizenship. The reader should also note that within this prescription there is no resemblance to, or association with the former sociological constructs of operant conditioning or behaviour modification used within11 therapeutic milieus using token economies. Neither is it directly related

11

Such as to suggest an assigned Landing Officer, Unit Supervisor, Casework Probation Officer, Prison Employer, or Psychologist.

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to the concept of Restorative Justice with which it has much, potentially, to share (cf. Walgrave 2008, op. cit.). Rather, it is an attempt to restore a semblance of rationality to the supposed justifications of criminal punishment in a prospective sense: justifications that have become obscured by recent attempts to resuscitate flawed conceptions of the rehabilitative ethic. Ultimately, however, it is about making more prisons fit for purpose. In the next and penultimate chapter of this book, it is appropriate to consider the wider role of prisons and their relationship with the communities that surround them. The foundation of HMPPS in 2017 suggested a combined Service bridging the ‘custody: community gap’ that has been characteristic of the penal process of England and Wales for many years past. There are,however, strategic and operational obstacles to be overcome in making such a concept a viable reality, and these have to be identified and resolved both in theory and in practice.

References Crewe, B., Hulley, S. and Wright, S. (2019) Life Imprisonment from Young Adulthood: Adaption, Identity and Time, London: Palgrave Macmillan. DiIulio, J.J. Jnr. (1987) Governing Prisons: A Comparative Study of Correctional Management, New York and London: Macmillan Inc. Easton, S. and Piper, C. (2016) Sentencing and Punishment: The Quest for Justice, [Fourth Edition], Oxford University Press. Easton, S. and Piper, C. (2019) ‘Outsourcing Punishment: A Poisoned Chalice?’, International Journal of Law, Crime and Justice, vol. 58: 69-79. Enteman, W.F. (1993) Managerialism: The Emergence of a New Ideology, Madison, Wisconsin: University of Wisconsin Press. Farrington, D.P. (1983) ‘Behaviour Modification’, in D. Walsh and A. Poole (eds.), A Dictionary of Criminology, London: Routledge and Kegan Paul, pp. 19-21. Fitzgerald, M. and Sim, J. (1982) British Prisons, [Second Edition], Oxford: Basil Blackwell. Garland, D. and Young, P. (eds.) (1983) The Power to Punish: Contemporary Penality and Social Analysis, London: Heinemamm Educational Books Ltd.

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Hawkins, G. (1976) The Prison: Policy and Practice, London and Chicago, ILL: University of Chicago Press. HM Chief Inspector of Prisons. (2019) Annual Report 2018-19, London: HM Stationery Office. Home Office. (1979) Committee of Inquiry into the United Kingdom Prison Services—Report, Cmnd. 7673, [The May Report], London: HMSO. Home Office. (1986) HM Prison Service, London: Home Office. Hough, M. and Roberts, J. (eds.) (1998) Attitudes to Crime and Punishment: Findings from the 1996 British Crime Survey, Home Office Research Findings 64, London: Home Office, pp.1-4. House of Commons Justice Committee. (2019) The Role of the Prison Officer, London: House of Commons. Klikauer, T. (2013) Managerialism: A Critique of an Ideology, London: Palgrave Macmillan. Mattinson, J. and Mirrlees-Black, C. (2000) Attitudes to Crime and Criminal Justice: Findings from the 1998 British Crime Survey, Home Office Research Findings 111, London: Home Office. Ministry of Justice. (2019) Prison Performance Ratings 2018 to 2019. London: Ministry of Justice. Morris, N. (1974) The Future of Imprisonment, Chicago, ILL: University of Chicago Press. Prison Reform Trust. (2019) Prison: The Facts, [Bromley Briefings Summer 2019], London: Prison Reform Trust. Rutherford, A. (1986) Prisons and the Process of Justice, Oxford University Press. Trasler, G.B. and Farrington, D.P. (1979) Behaviour Modification With Offenders: A Criminological Symposium, Cambridge Institute of Criminology. Walgrave, L. (2008) Restorative Justice, Self-Interest and Responsible Citizenship, Cullompton, Devon: Willan Publishing. Walsh, D.P. (1983) ‘Reform’, in D.P Walsh and A. Poole (eds.), A Dictionary of Criminology, London: Routledge and Kegan Paul, pp. 195–196. Wiles, P. (ed.) (1976) The Sociology of Crime and Delinquency in Britain, [Volume II: The New Criminologies], London: Martin Robertson. Wolfgang, M.E. (1979) Prisons Present and Possible, New York: Lexington Books.

9 Beyond the Prison Walls

Prisons in a Community Context Imposing structures as many prisons seem to be, deliberately designed to seclude those within them from the public view, almost every prison stands within or close to communities in which many of their staff and their families live and from which other locally recruited employees are drawn. In this sense prisons form part of local economies, and their employees, when not on duty, become integrated within community life. Most imprisoned offenders must at some stage return to the communities from which they originate and within which the majority of them have offended. It is therefore important that both they and their communities are prepared for this event, and the communities surrounding prisons can actively engage in this process to the mutual benefit of both parties as will become apparent later in this discussion. Whatever views one holds about ‘rehabilitation’ within prisons and the meaning of the concept, its possibilities and its potential effectiveness, the necessarily enclosed nature of prison regimes cannot replicate the environment beyond the prison perimeter. To complicate matters further, as Pat Carlen was at pains to point out in her lecture (Carlen © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_9

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2012, op. cit.), many of those to be rehabilitated come from the most disadvantaged and deprived sectors of society, and on release from prisons are frequently homeless, relation-less, unemployed or unemployable, and possibly feckless. In the words of Joe Sim (1992: 273–300), ‘When You Ain’t Got Nothing, You Got Nothing to Lose’,1 contemporary under-investment in custodial regimes in pursuit of crime control through incapacitation, combined with prison overcrowding, has done nothing to relieve or improve their situation. Stated bluntly, they have little or nothing to be ‘rehabilitated’ to. What prisons can do, as discussed in the previous chapter, is to operate disciplined and controlled regimes that deliver remedial education to those needing it, life and survival counselling, basic training in employment-enhancing skills, and a regulated work pattern to enable offenders to opt for a crime-free existence, and the competence to compete within their communities on a more equal basis on their release. Ideally, when this has been achieved, the final phase of custodial sentences should be spent on temporary release from prison to work within local communities on a supervised basis.

Bridging the Custody: Community Divide Though the formation of HMPPS in 2017 notionally brought the Prison and Probation Services together as a single entity within the Ministry of Justice, the unification has yet to become a reality in operational terms. Geographically, the lack of coterminous boundaries between the two Services is a serious hindrance which, until it is resolved, will hamper progress towards a unified correctional structure. Operationally, the historical differences of professional role between the two entities, although not entirely irreconcilable, are a significant factor that will delay reformative action to modernise and improve the criminal justice process. Strategically, serious consideration will have to be given to

1 Originally in a paper read at the British Criminology Conference held at the University of York in the Summer of 1991.

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devolving operational autonomy from the centre of the new organisation to a regional structure to enable the two Services to grow together professionally without overbearing and remote control from the London Headquarters. There is much to be said in favour of creating a unified and uniformed Correctional Services structure readily recognisable to the public, the courts, and the government alike. Both Services are primarily agencies of crime reduction in the national interest, and traditionally expressed and over-stressed academic disquisitions over the ethical incompatibility of the social control and social work differences between them are largely an irrelevance. Both have nuanced duties of care towards the same constituency of criminal offenders in the interests of social cohesion and improvement. This should be sufficient to unite and sustain them professionally in the service of the nation. From the viewpoint of this work, the principal issue that has to be resolved is of a predominantly operational nature. It is that of constructing a meshed custody: community structure that enables a seamless transition of custodial sentences into community supervision at an appropriate stage for those prisoners deemed capable of benefiting from such an arrangement in avoiding recidivism. The only realistic test of good intentions expressed in custody lies in the demonstration of law-abiding conduct within the community setting. Clearly such a provision could not and should not extend to all of those serving custodial sentences, some of whom may be remorseless in relation to their offences, or who are indifferent about making a commitment to ‘go straight’ on release and submitting to the test. Neither is it conceived as an alternative form of parole which is granted for other reasons and without the same conditions. The key to these differences lies in the term ‘structure’. The transitional arrangements implied here would rely upon infrastructural provision within communities to establish Community Corrections Centres (CCCs) staffed and equipped to deliver a full range of facilities including supervision and counselling of offenders,2 vocational 2

This includes the supervision of both offenders sentenced to community punishments and ex-prisoners released under the conditions described here.

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training, and work on community projects designed to enhance employability in the longer term. CCCs might also offer supervised hostel-type accommodation to participants who might otherwise be homeless on release from prison custody. Participants would receive a basic weekly wage for full compliance with their individual programmes,3 with a deduction for the reparation of victims of crime. The work of CCCs should be seen in parallel with and closely linked to the establishment of Area Community Justice Forums (CJFs) chaired by Police and Crime Commissioners (PCCs) which has been described in some detail in former work (Cornwell 2018, op. cit.: 126–139). The concept of CJFs is, however, a significant contributory component of a unified correctional process with considerable potential to include and support community justice within public law and order considerations. For this reason, therefore, the suggested composition of a CJF is indicated at Appendix 2 to this work. If HMPPS is to have a positive and constructive future, bridging the custody: community gap will depend upon the goodwill and determination of both its constituent agencies to put former differences aside and focus on aspects of common purpose that can draw them together. Correction of those who show themselves in need of it (cf. Gross: 71 supra) is one such aspect. Another is an acceptance of the fact that prisons are an artificial environment in which the scope for preparing people to live law-abiding lives is limited, particularly in present circumstances. All but very few prisoners will leave custody eventually, and the longer they remain secluded from the realities of life beyond the walls of prisons, the more difficult that task becomes in overcrowded conditions. Third, and perhaps most importantly, the case for abandonment of short-term imprisonment has been emphasised within this account on the basis that such sentences serve no useful social purpose and amount to ‘an expensive way of making bad people worse’ (Halliday 2001, op. cit.; Coulsfield 2004, op. cit ).4 The key to reducing overcrowding lies in

3 As an alternative to state unemployment or other benefits for the duration of their participation in the release scheme. 4 Referenced in the Bibliography as Home Office (2001), and Esmée Fairbairn Foundation (2004) respectively.

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eliminating unnecessary use of imprisonment, but in order to do so additional workload would be placed upon the Probation Service and also upon HM Courts and Tribunals Service in relation to Remand Prisoners (cf. 70 supra).5 Most Probation Officers working in prisons do so on a secondment basis for periods of time of variable length agreed with their Area authorities. Some opt to extend these periods, but few seek to make a career commitment to such work. A considerable proportion of their work in addition to casework with individual prisoners is devoted to establishing contacts with the nominated community casework officers on whose caseloads prisoners were prior to being sentenced to custody, and who will resume that responsibility when they are released. In reality it is difficult to imagine how this situation could be altered although it is time-consuming for both parties. It is conceivable, however, that developments in on-line technology might make scheduled three-way casework counselling a possible means of reducing the time spent by both probation officers in maintaining this necessary but time-consuming liaison task.6

Prisons and Their Neighbourhood Communities Many, and even most, prisons are located within or close to public residential areas. The nature of the physical barriers or walls between the two leads to inevitable public curiosity and even speculation about what life inside prisons is like and how prisons are run on a daily basis. Though 5

Though the considerations proposed in this analysis do not apply to prisoners serving custodial sentences of over four years in duration, it will be noted that provisions have been made in the Terrorist Offenders (Restriction of Early Release) Act 2020, c3, Session 2019–21, to repeal the legislation in CJA 1991 and CJA 2003 in relation to Automatic Early Release (AUR) at the mid-point of a determinate custodial sentence. Such offenders will now serve up to the two-thirds point of sentence in custody before being considered for release on licence or parole. If, in the future, such legislation should be extended to serious violent or sexual offenders, the impact upon the prison population would be considerable. 6 Such is to suggest three-way online conferencing between the prison probation officer with the prisoner present, and the community probation officer in his/her area office location.

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the general public cannot be admitted to see this for themselves, and it is wrong to make prisoners a public spectacle, there is much that prisons can do to cultivate positive relationships between themselves and their immediate neighbourhood communities. Most prison staff live within or close to these communities and will establish relationships with their neighbours, some of which will become lasting family friendships. While they have to be circumspect in matters of prison security and prisoners, it is almost inevitable that in conversations they will divulge impressions of what the prison is like to work in, how well it is managed, and the conditions in which they carry out their duties. The sum of such conversations will, for better or worse, convey to the local public a level of understanding about the prison and its functioning. It is also important that the way that prison staff conduct themselves in public, and particularly when in uniform, is beyond reproach. Senior prison staff can do much useful work in promoting the prisons within local communities by being pro-active in establishing relationships with local interest groups such as magistrates, faith groups, schools and colleges, businesses and employers, community police and emergency services and the like by giving informal talks when these are requested or offered. The Independent Monitoring Board (IMB) of each prison and accredited Prison Visitors can also be influential in furthering the image of the prison within the local area. Community Justice Forums (CJFs) previously mentioned, when established7 and if regularly briefed by Prison Governors, can also assist in spreading understanding of the work and problems of prisons on a more formal basis. These organisations could also provide (through PCCs in their statutory annual Reports to the Home Secretary) a valuable and independent source of information to ministers and government on the operational state of community justice within their areas.8

7 Blueprints for community involvement are evident or emerging in other jurisdictions, most notably in Canada since the early years of this millennium (Mirsky 2005), and more recently in Scotland (Scottish Government 2013; Criminal Justice Voluntary Sector Forum 2014). 8 Elected PCCs are accountable to the Home Secretary for the performance of their duties established in the Police Reform and Social Responsibility Act 2011, c.13, Part 1, Chapter 4. See

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Governors of lower security (Category C and D) prisons have authority to temporarily release prisoners, either singly or in small groups, to work on approved projects within local communities, returning to the prison each evening. Such small groups would normally be accompanied by a member of the prison staff other than in exceptional circumstances, and the projects selected to be of amenity value to the community and include some skill-enhancing potential for the participants.

Is There a Role for Reparative Justice in a Unified Correctional Process? As an interesting glimpse from antiquity, Elmar Weitekamp (1992: 84) records that William Tallack, a British social activist and Quaker advocating penal reform wrote: Reparation as the chief, and often whole, element of punishment was wiser in principle, more reformatory in its influence, more deterrent in its tendency and more economic to the economy. (Tallak 1900: page reference now obscure)9

This relatively simply worded and straightforward sentence has considerable significance for our discussion here. The concept of reparation by offenders is widely found within the criminological literature of the 1990s and onwards, tacitly acknowledged, and yet has had only marginal impact upon governmental criminal justice policies and practices over the intervening years in England and Wales. Reparation Orders were included in the Sentencing Act 1995 at Part 16 in England and Wales, but applied mainly in the Youth Courts in the also: Home Office, Have You Got What It Takes? Your Role as a Police and Crime Commissioner, London: Home Office 2012, and also Cornwell 2016: 121. 9 The reference to Tallak is evident in E. Weitekamp, ‘Can Restitution Serve as a Reasonable Alternative to Imprisonment?’ in H. Messmer and H.U. Otto (eds.), Restorative Justice on Trial: Pitfalls and Potentials of Victim-Offender Mediation, Dordrecht and Boston, MA: Kluwer Academic Press, 1992, pp. 81–103, quoted in Walgrave 2008, op. cit.: 14.

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form of Compensation Orders and Restitution Orders to be supervised by Youth Offending Teams (YOTs). Subsequently, in the Powers of the Criminal Courts (Sentencing) Act 2000 (at Chapter 4, s.73), provision was made for offenders aged 16 year or over to be sentenced to a Reparation Order in Magistrates’ Courts, with stipulated upper limits on the amount payable. Restitution Orders were also included at s.148 of the same Act. As Gill McIvor indicated in a comprehensive survey of Reparative and Restorative approaches (McIvor 2004 op. cit.: 162–194), during the years of the 1990s there was a worldwide growth of interest in reparation as a means of engaging comparatively young and less serious offenders with the consequences of their offending on victims of crime, and their own prospects of desistance from a future criminal lifestyle. Many of the projects evaluated appeared to report positive outcomes although these were developed on a piecemeal basis and evaded rigorous comparative analysis. Most were confined to the sector of juvenile and young adult offending, and much lesser attention was devoted to older more serious and recidivist offenders whose prospects of opting for crime-free lives might be anticipated to be considerably less favourable. It is also a noticeable factor that many of the programmes studied were established on a ‘pilot’ or short-term basis of funding which became decreasingly available during the following decades of worldwide economic recession and financial stringency during the early-2000s. This was not, however, the only factor affecting criminal justice delivery during the same period in which preoccupation with victims of crime rather than offenders became predominant and attitudes towards the punishment of offenders hardened considerably. The worldwide literature on Restorative Justice and reparation is now voluminous and defies neat encapsulation or categorisation other than on a broad basis of comparison. Whatever the arguments to be deployed for or against the concept of reparation and restoration within criminal

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justice, it has been effectively stalemated and marginalised by the traditionalist adherents to jurisprudential principles and processes apparently immune from disputation or criticism on a rational basis.10 Surely, the more apposite question that has to be answered about Reparative Justice is that of whether, if it were to be more widely used, it would deliver preferable justice and outcomes in certain defined areas of jurisprudential practice? The ‘Yea’-sayers would doubtless affirm that it has already proved its potential, and that given a reasonable opportunity of doing so more widely would be beneficial: the ‘Nay’-sayers would respond by claiming that in default of empirically validated comparative research, its claims were not ‘evidence-led’ but remained speculatively uncertain. And thus the status quo would be preserved and prolonged indefinitely. Tallack’s assertion quoted earlier is, however, of a different dimension. It suggests that reparation is a legitimate and desirable precursor to the restoration of offenders to full and responsible citizenship if and when it can be made. Reparation viewed as an integral component of restorative justice, and as a means of meeting the obligation of offenders to put harms or wrongs right (cf. Zehr 2002, op.cit.: 22–23), does have a claim to a role in a correctional process providing that it is not of an entirely retributive and punitive nature. It seems, therefore, that our contemporary societies have to make a choice between these two agendas. Prisons need not be excluded from participation in reparation, but in partnership with the Probation Service can provide a platform for ‘seamless sentences’ that combine custody with supervised release towards the expiry date of sentences. This can be achieved either by daily release on licence, returning to the prison at night, or by early release on licence (EROL) for specified periods supervised by Probation Officers in the community. Prison regimes can be structured to provide purposeful work and wages from which voluntary deductions can be made for the reparation of victims of crime either directly (individual victim reparation) or

10

Such as, for instance, uncritical belief in the efficacy of deterrence-based punishments the effects of which are unquantifiable in effect or outcome, but which are retained as a justification of criminal punishment on the simplistic basis that they cannot be disproved. See Cornwell 2018, op. cit, passim, and also: Cunneen and Hoyle 2010, op. cit.: 109–132.

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paid into a central fund administered by the Ministry of Justice for the wider reparation of victims (general victim reparation). CJFs can also be instrumental in suggesting civic amenity projects that cannot be attempted due to lack of manpower or other resources, and have had to be shelved for such reasons. Local agricultural, horticultural and woodland maintenance businesses may also welcome additional labour resources, particularly at peak workload periods of each year. Many Local Authorities also struggle to maintain foot and bridle-paths in good condition for public access which might be considerably improved given the manpower to do so. Such is not to suggest that using offender participation at the expense of the non-offending unemployed should be tolerated, but that the training value that it might include for offenders, combined with a regular working schedule, could be invaluable in encouraging a future law-abiding lifestyle. One prison in which I had the experience of working as a governor grade was located in a walled town centre location, but had a fenced market garden facility the size of a football pitch in a residential area within a ten-minute walk of the prison itself employing up to twenty prisoners on a full-time basis five and a half days in each week. The quality and range of the produce were of the highest standard of ‘polytunnel cultivation’ found anywhere locally, keeping the prison supplied as well creating a sales outlet for the prison staff and local residents. It was operated by a Farm Foreman with the assistance of two prison officers responsible for the supervision of the Farm Party within the fenced perimeter, and in radio contact with the prison Control Room. Competition within the prisoner community to be selected to work on the market garden party was intense, no attempt to escape from the facility was ever made, and the standard of training the participants received from the Foreman was such as to lead eventually to a City & Guilds qualification if successfully completed. The operation was financially self-supporting with the exception of the Foreman’s salary, and income from sales to prison staff and local residents financed the purchase of seeds and other horticultural materials. The inevitable interface of contact between the prisoners and the local population was both respectful and relaxed on both sides, and many of the prisoners benefited considerably from the conversations of wisdom

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and encouragement that were exchanged between them. Most notably, however, the behaviour and industry of the prisoners both at work and within the prison exceeded all expectations with very few exceptions. Removal from the party was undoubtedly the most feared sanction that governors could impose and was very rarely invoked. The purpose of recounting this situation is that this was a small Victorian town centre prison designed to hold up to 220 convicted prisoners in single cells and with meagre facilities for employment of their sentence time. Within the 15ft stone walls it had only three small workshops (a Textile Shop making prisoner uniform items, a Sewing Machine Repair Shop, and a ‘Mailbag’ Shop hand-stitching canvas mailbags for the Post Office). The only recreational outlet was a small internal gymnasium just large enough for basketball to be played and considerably under-used. On my arrival the prison housed Category ‘C’ adult prisoners of all ages, mostly persistent petty offenders, and who caused little trouble providing that their aimless lives were not disturbed to any unnecessary extent. That situation was about to change dramatically as a decision had been made to empty the prison of this relatively passive population and replace them with young adult (15–18-year old) offenders who had, in the majority of cases, proved too disruptive within the (then) existing Borstal Training system. Most were destined to move on to adult prisons on reaching 18 years of age, and many of them were impatient for that transition to adult status to take place. In such an unpromising situation the effect of this role-change upon the lives of the prison staff was, to state the least, profound. Few days passed without incidents of one form or another in which aggressive and abusive young men had to be forcibly restrained, and the small (18 cell) Segregation Unit was usually occupied to near capacity. Selecting suitable trainees for the Market Garden operation became infinitely more difficult as might be imagined.11 Anecdotal as this brief illustration might seem, it raises a number of issues and questions germane to this work to be pondered. First, it confirms the fact that even in prisons with strictly limited resources and amenity, with enlightened and progressive leadership the ‘custody: 11

Northallerton Prison, subsequently re-designated as a Young Offender Institution (YOI), was eventually closed in 2013, and the site re-developed for commercial and civic amenity purposes.

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community gap’ can be bridged with beneficial effect, even if only to a limited extent. Second, if the majority of those imprisoned for relatively short periods of custody do not pose a vivid public risk and have to be released within months rather than years, is their total social isolation and incapacitation either strictly necessary or economically desirable? Third, given the age, town centre location and very meagre resources of the prison to provide an active and purposeful regime for its charges, the decision to fill such a prison with potentially disruptive young adult offenders seemed particularly bizarre and unnecessarily punitive, especially since in the early to mid-1980s overcrowding of prisons had yet to become a widespread problem in England and Wales. Fourth and finally, bridging or closing the custody: community divide between prisons and non-custodial corrections requires that prisons operate regimes designed to prepare offenders for their supervised release back into society beyond the walls resolved and better equipped to resist re-offending. This implies implementing policies deliberately designed to test out good intentions with graduated periods of temporary release authorised by prison governors. In the mid-1990s and onwards such use of temporary release was deliberately curtailed and discouraged by Ministers and their officials out of fear inspired by the media of allegedly increasing public risk. Prisons are statutorily required to release prisoners from custody by the scheduled date of their sentence expiry, and delivery of pre-release training and preparation courses too easily become the casualties of restricted prison regimes. Post-sentence recidivism rates are consequently enhanced by many prisoners being discharged from custody without adequate access to such training and preparation. Risk-averse sensitivities and policies imposed upon and incorporated into the culture of public institutions such as prisons considerably restrict initiatives to ‘normalise’ the lives of offenders through community involvement and prepare them effectively for release back into their lives beyond custody without subsequent re-offending. Such policies also stifle progressive initiatives for prison governors to explore opportunities for local community participation in criminal justice in addition to carrying the risk of perpetuating the likelihood of recidivism. These risks have to be sensitively balanced and evaluated.

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This situation provides a further reason for the abandonment of short-term custodial sentences insofar as prisoners serving sentences measured in months rather than years may not reach Training Prisons for some weeks following upon conviction, sentence, and allocation. Some may have spent weeks if not months on remand: time which has to be deducted from the custodial period of their sentence. On arrival at their Training Prison, they should undergo a period of induction training, further assessment, and work placement. Vacancies on vocational training courses may be limited in overcrowded prisons or even in un-crowded ones, with waiting lists making for further delay, and even ruling out their participation altogether. Short-sentence prisoners therefore frequently find themselves at the ‘bottom of the pile’ for opportunities to make constructive use of their time in prisons, becoming disillusioned and aimless, frustrated and even antagonistic towards prison staff and the authorities that sent them there. A finer recipe for recidivism is difficult to imagine. In 2018–2019 these people cost the economy an average of £3,600 per month to accommodate each of them in prisons (Ministry of Justice 2019, op. cit.: Table 1).12 They were also part of the caseload lists of two Probation Officers (one in the prison and one in the community area in which they resided) during the period of time spent in prison custody. Surely the time has come to re-assess the cost-effectiveness of such resource expenditure and re-align sentencing practices accordingly. In the last chapter of this work which follows, an attempt will be made to draw together the main conclusions that emerge from the discussions within this book in relation to the operation of the prisons of England and Wales since 1945. In many different respects, it amounts to a history of the failure of successive governments to understand the implications of imprisonment as the ultimate penal sanction, to define its purposes with clarity, and to design and operate a coordinated and systematic criminal justice process to deliver those purposes. Without an understanding of

12 The average annual overall cost of a prison place in 2019 was £43,213, see Ministry of Justice, Costs per Prison Place and Costs per Prisoner by Individual Establishments 2018 to 2019 Table 42, London: Ministry of Justice 2019 op. cit.

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these failures and the reasons for them, it becomes impossible to discern how better justice might be delivered in future years.

References Carlen, P. (2012) Against Rehabilitation: For Reparative Justice, [2012 Eve Saville Lecture], London: Centre for Crime and Justice Studies, (November). Cornwell, D.J. (2016) Desert in a Reparative Frame: Re-defining Contemporary Criminal Justice, Den Haag, NL: Eleven International Publishing. Cornwell, D.J. (2018) Criminal Deterrence Theory: The History, Myths and Realities, Den Haag, NL: Eleven International Publishing. Criminal Justice Voluntary Sector Forum. (2014) Redesigning the Community Justice System: A Policy Briefing for CJVSF Members, available at: http://www.ccpssscotland.org/cjvs/wp-content/uploads/sites/4/2014/03/ CJVSF-briefing-Redesigning-the-Community-JusticeSystem1.pdf [Accessed 10/10/2014]. Cunneen, C. and Hoyle, C. (2010) Debating Restorative Justice, Oxford and Portland, Oregon: Hart Publishing. Esmée Fairbairn Foundation. (2004) Crime, Courts and Confidence: Report of an Independent Inquiry into Alternatives to Prison, [The Coulsfield Report], London: The Stationery Office. Home Office. (2001) Review of the Sentencing Framework, Making Punishments Work, [The Halliday Report], London: Home Office Communications Directorate. McIvor, G. (2004) ‘Reparative and Restorative Approaches’, in A.E. Bottoms, S. Rex and G. Robinson (eds.), Alternatives to Prison: Options for an Insecure Society, Cullompton, Devon: Willan Publishing, pp. 162-194. Ministry of Justice. (2019) Costs per Prison Place and Cost per Prisoner by Individual Prison Establishment, 2018 to 2019, Table 42, London: Ministry of Justice. Mirsky, L. (2005) The Nanaimo Community Justice Forum: A Restorative Justice Partnership in British Columbia, Canada, Bethlehem, PA: International Institute for Restorative Practices. Full text available at: www.iipr.Edu/article_a rticle_detail.php?article_id=Mzkx [Accessed 02/02/2015]. Scottish Government. (2013) Redesigning the Community Justice System: Response to Consultation, Edinburgh: Scottish Government.

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Sim, J. (1992) ‘When You Ain’t Got Nothing, You Got Nothing to Lose’, in K. Bottomley, T. Fowles and R. Reiner (eds.), Criminal Justice: Theory and Practice, London: British Society of Criminology, pp. 273-300. Tallack, W. (1900) Reparation to the Injured and the Rights of Victims of Crime to Compensation, London: Wertheimer, Lea and Co. Walgrave, L. (2008) Restorative Justice, Self-Interest and Responsible Citizenship, Cullompton, Devon: Willan Publishing. Weitekamp, E. (1992) ‘Can Restitution Serve as a Reasonable Alternative to Imprisonment?’ in H. Messmer and H.U. Otto (eds.), Restorative Justice on Trial: Pitfalls and Potentials of Victim-Offender Mediation, Dordrecht and Boston, MA: Kluwer Academic Press, pp. 81-103. Zehr, H. (2002) The Little Book of Restorative Justice, Intercourse, PA: Good Books.

10 Summation and Conclusions

The Starting Point The history of a failing process is only useful if it enlightens causal diagnosis of the symptoms of a malaise and measures to overcome their undesirable consequences. The process in this instance is criminal justice administration in England and Wales, and specifically within that process, the functioning of prisons as the State’s most powerful response to criminal wrongdoing. The volume of critical criminological (and sociological) literature on penology generated since 1945 in Britain and elsewhere worldwide is massive. Remarkably, however, only a meagre proportion of that literature has been contributed by criminal justice practitioners with many years of experience of working within criminal justice processes in general and prison systems in particular. The result of this situation is that much of the literature is speculative in nature, due in part to the traditionally imposed aura of social isolation and restricted access in which prison systems like that of England and Wales are constrained to operate. Prisons are places apart, secluded from the public gaze, but yet working continuously on the public behalf. © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2_10

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To the occasional visitor prisons will appear to be architecturally austere and forbidding, accessed as such places are by locked doors and grille gates, with pedestrian movement continuously monitored by CCTV cameras, and some even with the obvious presence of patrol dogs and their handlers. Each internal area is partitioned-off by high wire-mesh fences, some topped with razor wire to prevent scaling. Some prisons can be stressful to work in, particularly in the event that they are overcrowded above their designed capacity and control of prisoners is not strictly imposed. Some visitors also find the requirement of being searched on entry to prisons an intimidating experience, however, cheerful, respectful, and helpful the staff carrying out searching duties may be. For prisoners also, their first exposure to life in prisons can be stressful and even terrifying. They may know or recognise no one, feel isolated from all that is familiar in their lives, and fearful for their safety. If obliged to share the confined space a cell with someone they have never seen before they may be unable to relax or sleep at night, or enjoy eating the diet provided. Almost certainly the experience of being locked in a confined space will be alien and intimidating. Who can they trust, and to what extent? These are some of the facts of prison life: others will come to affect them as they become accustomed to their surroundings and what is expected of them while in the custody of the state. Public attitudes towards crime and its punishment (rather, necessarily, than prisons) are a complex issue and extremely difficult to gauge with accuracy, but are also widely open to political manipulation (Maruna and King 2004: 84 and passim; Roberts 1992; Roberts and Hough 2002; Roberts et al. 2003). Instances of this fact have emerged in this volume in relation to the ‘Prison Works’ hypothesis of Michael Howard in 1993 (cf. Chapter 3: 35 supra) and in Chapter 4 passim in relation to CJA 2003. To this might be added the decision taken in May 2013 by the (then) Justice Secretary Chris Grayling to outsource the supervision of low- and medium-risk offenders from the Probation Service to the private sector in the form of CRCs (cf. Chapter 5: 87), and the history of their subsequent failure. Against this background it becomes possible to identify a number of concerning aspects of the strategic and operational management of

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the criminal justice process of England and Wales by governments since 1945 and into the present era. Within this work there has been a primary focus upon the prisons which, with the Probation Service, have been instrumental in delivering the criminal justice policies of successive governments in operational terms. These two entities do not, however, stand alone, but, as has been made evident in the preceding chapters, are to a considerable extent driven by the sentencing practices of the courts and the judiciary in dealing with criminal offenders and their offences against the laws of the state. Overarching this situation stands the behaviour of successive governments in framing the legislative policies and provisions that govern the conduct of the entire criminal justice process, their motivations, and their responsibility for ensuring that the process is adequately resourced to deliver its assigned purpose. In a book of this nature spanning so many years of the life the prisons of England and Wales within the wider criminal justice process and the political contexts in which they were constrained to operate, it becomes difficult to draw together the many themes and strands of discussion into a coherent account without undue repetition. The title of this book Prisons, Politics and Practices does, however, provide a framework within which such an attempt can be made and broad conclusions drawn.

Prisons: Their Use and Abuse Given the fact that in Britain imprisonment is the ultimate sanction available to the courts in dealing with criminal offending, that it is expensive in financial and human terms to operate, and that it is conspicuously ineffective in reducing rates of reoffending as presently operated, its contemporary overuse becomes distinctly questionable. These facts emerge with clarity from Part One of this work. Prisons fulfil an essential social service to the public by excluding for periods of time decided by the courts those citizens who, by their serious offending against the law, pose an unacceptable risk to national security or public safety if left at large. The number of such persons appears to have risen almost exponentially since 1945 (cf. Fig. 1.1 fp. 1) into the present millennium, as has the cost of their exclusion in similar manner.

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This raises the question of whether the justifying criteria for their exclusion have changed over the interim period, or whether the British as a nation have become less tolerant of, and more punitive towards criminal offending and offenders. This study has shown that many thousands of those imprisoned for short periods of time on an annual basis in England and Wales are excluded for reasons that are not justifiable according to the strict criteria previously indicated, and therefore, their detention is unnecessary and avoidable if other and effective non-custodial sanctions could be invoked. Prisons have no means of controlling the number of offenders committed into their keeping by the courts, and the long-running penal crisis described in detail in this work had been exacerbated since the mid1990s by the avoidable overcrowding of prisons beyond their designed capacity to provide decent, secure, safe, and purposeful conditions. Stated bluntly, overcrowding of prisons is an abuse of imprisonment. Its effects have been fully explained in Part Two of this work (cf. Chapter 6: 121 supra|), as has the evasive behaviour of the Prisons Board and Ministers in implementing the ‘operational capacity’ measure in an attempt to legitimise it. Overcrowding leads directly to further abuses of prisons by impoverishing regimes, affecting security procedures, and making violence and drug abuse more difficult for prison staff to control. The record of Part One of this book reveals starkly the changing nature of the supposed purposes of criminal punishment, and therefore of prisons, throughout the decades of the second half of the Twentieth Century in England and Wales. It explains with clarity the rudderless and eclectic nature of governmental behaviour and policy-making in relation to the penal process, and the manner in which neglect and mismanagement made the prison system and its population ever more likely to implode until it did so eventually in the almost catastrophic disturbances and riots of April 1990. The same record also indicates how adoption of the ‘managerialist’ orthodoxy in relation to the operation of public sector Departments of State during the late 1980s and onwards ‘as if ’ they were for- profit enterprises led to increasingly bureaucratic and impersonal centralisation and remote control from the centre in London, and the abandonment of devolved and semi-autonomous regional structures. The Prison Service

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was particularly affected by this transitional process which changed the entire nature of prison governance, and with it some of the last vestiges of gubernatorial leadership skills and autonomy that enable individual prisons to function effectively in their local settings. The imposed partnership between the Prison and Probation Services, initially within NOMS from July 2004 and subsequently within the newly formed MoJ from 2007, was never without its attendant difficulties. Historically different in their origins and operational raisons d’être, the two Services functioned entirely separately with the single exception of the secondment of Probation Officers to prison establishments to undertake casework with prisoners since the late 1970s.1 The formation of HM Prison and Probation Service (HMPPS) in April 2017 has not resolved the structural geographical mismatch of boundaries between the two Services beneath the Ministry of Justice level which hampers a more effective relationship within the regions of the country. There remain many unanswered questions and unresolved issues concerning the future use of the prison system of England and Wales in the 2020s and beyond. Foremost among these is the pressing need to reduce and ultimately eliminate prison overcrowding which forms the roadblock to progress. This will depend upon resolving the ‘more prisons versus less prisoners’ dilemma which has been the scourge of the system for four decades past as this work has attested. Until this is unequivocally decided, the prisons will remain incapable of meeting the challenge of reducing crime and recidivism. It is a dilemma which evidently lies beyond the partisan politics parliament to resolve, and why this book has called for a Royal Commission on the Penal System of England and Wales to be established without delay. Used properly, un-crowded and adequately resourced prisons and their staff can work with prisoners to address the latter’s offending behaviour and prepare them to be released back into society without the need to re-offend. In order so to do, prison regimes have to be structured in a disciplined and controlled manner that is both safe and secure. Searching procedures and programmes in relation to staff, prisoners, areas, and 1 And also liaison with the supervising Probation Officer of prisoners in their area of origin prior to imprisonment and in relation to the post-sentence supervision of prisoners on parole or other forms of licence or release at sentence expiry.

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visitors have to be supervised and implemented on a routine basis fully meeting baseline procedural standards in order to reduce and eliminate the presence and importation of drugs, contraband items such as mobile phones and associated items. This has been a recurring weakness in prison security over many years past as auditing has revealed, and has to be corrected. Front-line prison staff in daily contact with prisoners require, and ultimately value, regular supervision and encouragement from their managers at all levels in carrying out their duties. This means that supervisory grades have to ‘manage by walking about’ and provide a visible presence rather than becoming desk-bound in offices dealing with endless amounts of paperwork, statistical returns, and the like. The Prison Service Headquarters also has to recognise the need to reduce to the minimum the constant flow of orders, instructions, and demands for statistical information and returns, in order to free managers in prisons to run their prisons effectively. In essence, therefore, it has to be recognised that the imposition of any excessive requirement for time to be spent in ‘servicing’ the Headquarters bureaucracy is ultimately an abuse of managerial time in the prisons. The use of prisons in England and Wales beyond the incapacitation of serious and dangerous offenders on a long-term basis remains manifestly unclear at the present time. The concept of criminal dangerousness has been invoked since the legislation in the Criminal Justice Act 2003 as a supposed justification for detaining many serious, but not necessarily pathologically dangerous offenders, in prisons beyond the criterion of desert for their offences. Moreover, since the concept of dangerousness is, in itself, seriously questionable in relation to false-positive predictions, such sentencing behaviour is potentially, if not actually, abusive of both offenders and of prisons. That such detention on an indeterminate or semi-indeterminate basis is currently prevalent in English prisons is the result of deliberate penal policy and legislation makes it a political issue to which the following discussion is directed.

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The Politics of Criminal Justice Criminal justice is widely accepted as the delivery of justice to those who have committed illegal acts or omissions defined as crimes enacted in legislation.2 Since legislation is the province of parliaments or legislatures to determine, crime and its punishment become political issues of debate. The means of delivery are the decisions of the courts in sentencing those convicted of crime within the parameters of punishment specified within the legislation.3 The recurring themes within this work reflect the changing nature of criminal justice policies involving prisons and imprisonment since 1945, and a particular focus has been placed on the political stances and behaviours of successive governments during the 1990s and into the present millennium. The strategic management, and indeed the mismanagement of the prison system since 1990 in particular, has been demonstrably shown to be due in large part to the nature and effects of the legislation pursued by successive governments in pursuit of electoral advantage. For stated quite simply, if governments can legislate in a manner that fills prisons to overcrowded capacity, they can also legislate to prevent that situation from occurring. This was as true of the ‘Prison Works’ policies adopted by the Conservative government in 1993 as it was of the IPP and ESPP legislation of the New Labour administration in the Criminal Justice Act 2003. Both were acts of wilful negligence in defiance of documented advice that to do so would have serious consequences upon the stability and functioning of the custodial penal system. Such situations question the nature of the relationship traditionally in existence in England and Wales between the Executive and the independent Judiciary within the concept of the Separation of Powers of ancient 2 Herein lies a definitional difficulty, for as Gibson (2009, op. cit.: 47–48) points out: ‘Essentially, all crimes consist of actions, behaviours or events prohibited by the criminal law as opposed to lesser forms of wrongful, inappropriate or unacceptable behaviour. Classic texts point to the difficulties of further or abstract definition: even if it is relatively easy to identify the nature or ingredients of individual crimes such as assault, criminal damage, theft (etc.)’. 3 Or, in the case of the judiciary in England and Wales which is traditionally independent of parliament, if departing beyond the parameters, to give reasons for the departure which become matters for subsequent appeal.

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origin. Governments can impose constraints on the sentencing behaviour of the courts through legislation, but traditionally refrain from doing so either from fear of provoking a judicial ‘revolt’ or in the belief that the judiciary will act with sufficient restraint to obviate serious problems arising within the penal process as a result of sentencing practices. Sentencing guidelines adopted during the early 2000s have proved to be insufficiently prescriptive to resolve this ‘stand-off ’ situation in spite of the considerable expense devoted to the establishment of the Sentencing Advisory Panel (SAP) in 1998 and the Sentencing Guidelines Council (SGC) in 2003. Indeed, creation of the short-lived Department for Constitutional Affairs (2002–2007) as the fore-runner of the Ministry of Justice, and the Constitutional Reform Act 2005, may be seen with hindsight to have added, at that stage, more confusion than clarity to this situation.4 The decision to create the Ministry of Justice in July 2007 including both the Prison and Probation Services within NOMS removed the two Services from control by the Home Office and signalled the advent of a new era for the administration of criminal justice in England and Wales. It did not substantially change the fraught operational situation within either Service, and as far as the prisons were concerned, publication of the (second) Carter Report (Carter 2007, op. cit.) later in that year did little to alleviate anxiety about the future,5 recommending an immediate expansion of the prison building programme, the development of large ‘Titan’ prisons, and limitation of the use of custody for low-risk offenders.6 The ‘Titan’ prisons proposal discussed in Chapter 5 supra re-opened a much older and dichotomous debate held in the late 1960s over the policy recommendations of Lord Mountbatten and of Leon Radzinowicz 4

The Constitutional Reform Act 2005 effectively switched the functions of a judicial nature from the Lord Chancellor to the Lord Chief Justice and various independent bodies, and created the Supreme Court of Justice. 5 Cf. Carter of Coles, Securing the Future: Proposals for the Efficient and Sustainable Use of Custody in England and Wales, London: House of Lords, 2007, op. cit. (December). 6 To provide a further 6,500 places to the prisons estate by the end of 2102, also the building of large 2.500 place ‘Titan’ prisons, and a lukewarm recommendation that legislation for the use of custody for low-risk offenders should be modified to encourage the use of non-custodial alternatives.

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concerning the treatment of long-term prisoners requiring conditions of maximum security (cf. Home Office 1966, op. cit., and ACPS 1968, op. cit. respectively in Chapter 2: 13). The former had favoured the construction of a large fortress prison on the Isle of Wight (named ‘Vectis’) in which to concentrate such prisoners, while the latter had proposed their ‘dispersal’ within a small number of high security prisons—a policy that was ultimately accepted with the progressive creation of the Dispersal Prisons Group in the early 1970s and which continues to exist at the present time.7 Carter’s ‘Titan’ prisons proposal was in addition to that of creating 6,500 additional prison places by 2012 and for two further 2,500 place prisons to allow, over time, for the replacement of existing inefficient and decrepit prison establishments (Carter 2007, op. cit.: 2). As was also noted in Chapter 5, in addressing limitations on the use of custody, Carter had also proposed the creation of a permanent Sentencing Commission for England and Wales, as part of a government strategy to ‘moderate the demand for custody by between 3,500 and 4,500 places by 2014’ (Ibid.: 4). In its response to the Carter Report the Justice Secretary Jack Straw had announced (on 5th December 2007) that the government had accepted his proposal for a Working Group to be set up to examine the feasibility of such a Commission under the chairmanship of Lord Justice Gage, but made no mention of reducing the demand for custody, or Carter’s other main recommendation concerning improvements to the functioning of the Prison Service Headquarters in London. A Consultation Paper was also announced to be launched in June 2008 in relation to the Titan Prisons recommendation to which largely unfavourable comment had already begun to emerge from among interest groups. From early in 2009 it became apparent that implementation of the ISP and ESPP sentences in CJA 2003 was having a marked effect on the size of the daily prison population. More than 11,000 prisoners were serving such sentences and life sentences in mid-2008, an increase of some 7 Although in the interim period some of the prisons originally designated as ‘dispersal prisons’ (e.g. Hull, Gartree, Wormwood Scrubs (D Wing), and Parkhurst0, had ceased to fulfil that role, and newer prisons (e.g. Full Sutton and Frankland) had been added. In addition, the newest prisons at Belmarsh and Woodhill had been designated as ‘Core Category A Local Prisons’ with the same standards of security as the Dispersal Prisons.

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5,500 over the level at the end of 2004. The government had shown no interest in limiting or abandoning the use of short-term custody, which of the older or inefficient prisons were to be closed remained uncertain, and who would manage the new replacement prisons was undecided. A further General Election was also due to be held in mid-2010 with the prison population still rising, and at a level of over 82,100—13 per cent higher than that a decade earlier. Prime Minister Tony Blair had handed over his premiership to his Deputy Gordon Brown during 2007, and New Labour was losing popularity in the country as the Election approached. As was predicted, the General Election of May 2010 returned the Conservative Party to office, though without an overall majority in parliament unless a coalition with the Liberal Democratic Party could be formed (cf. 49, fn. 26 supra). This coalition was achieved with David Cameron as Prime Minister, Nick Clegg the Liberal Democrat Leader as his Deputy, and Kenneth Clarke recalled as Justice Secretary having been Home Secretary in 1992–3. This arrangement gave the coalition government an overall majority of 76 seats in the House of Commons, but the economic situation in the UK was in a parlous state as a result of the fiscal policies and somewhat profligate spending behaviour of the New Labour administration over the previous decade. The criminal justice process including prisons may have been one of the beneficiaries of that spending, but the need for severe economic retrenchment was evidently unavoidable as the new administration assumed responsibility for the economy. A five-year programme of spending cuts in all of the major public service departments was imposed in 2010, of which the Prison Service within the Ministry of Justice had to bear its share.8 With the Service previously committed to a considerable new prison building programme already commenced, reduction in the size of the workforce and other budgetary reductions became inevitable and of deep concern for the stability of the organisation. Manpower reductions and the nonreplacement of retiring or sick staff lead inevitably to lowered morale,

8

Cf. p. 51 supra.

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raised levels of sick absence due to stress, and industrial relations problems, with working to rule situations imposed by the POA, and a prison population ever more difficult to control on a daily basis. Increases in prisoner misbehaviour, assaults, failure to stem the importation of drugs and contraband, and self-harm are an almost inevitable outcome of such situations in which both security and control in prisons become threatened to a considerable extent. Kenneth Clarke’s response to the impending situation in 2010–2011 was to announce his ‘Rehabilitation Revolution’ which was intended to reduce use of short-term sentences of custody in combination with increased use of community sanctions, early release on licence (EROL), and extended use of electronic monitoring and home detention curfew (HDC). His Green Paper published in parliament in 20109 failed to gain acceptance either among his Cabinet colleagues, or wider within the House of Commons, and was abandoned without parliamentary debate as a White Paper. He was subsequently succeeded by Chris Grayling as Justice Secretary in September 2012. In that same year there occurred what was perhaps the most significant U-turn in the political history of the criminal justice process of England and Wales recorded within this work. As Grayling assumed office as Justice Secretary the Legal Aid, Sentencing and Punishment of Act 2012 was before parliament. It abandoned the ISPP and ESPP indeterminate sentencing provisions of CJA 2003 and replaced them with an Extended Determinate Sentence (EDS) for offenders convicted of serious violent or sexual crimes defined in s.124 of the Act. This was no doubt due in large measure to the extreme pressure that the CJA 2003 sentences had placed upon the Parole Board, and the many complaints that had arisen over prisoners held well past their tariff expiry dates without reviews being completed in relation to their eventual release.10 From 2011 onwards the programme of prison closures planned in response to the Carter Report 2007 was implemented with a view to completion by late in 2013. The overall extent and severity of 9

Here, see the Green Paper Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of , London: Ministry of Justice, 2010. 10 Cf. pp. 50–51 supra.

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the retrenchment programme over the five-year period 2010–2015 was unique in the history of the Prison Service, though in manpower terms it was set to extend beyond 2015 until 2017 with serious consequences for the operational functioning of the entire custodial sector of the penal process then and thereafter. By the Spring of 2013 dark clouds were also gathering over the non-custodial sector of the penal process and the Probation Service in particular. A White Paper presented in parliament in May with the title Transforming Rehabilitation: A Strategy for Reform (Ministry of Justice 2013, op. cit.) in which the government declared its intention to outsource the supervision of low- and medium-risk offenders, including those released from custody, to what were termed Community Rehabilitation Companies (CRCs) operated by the private sector (cf. 51–52 supra). Not only was this an unprecedented concept since the foundation of the Probation Service in 1907, but it struck at the heart of the ethic on which it was based as a nationwide public service to ‘advise, befriend and assist’ offenders on the behalf of the courts. Moreover, it was apparently to be imposed without any extent of substantial consultation, or any researched evidential basis to suggest that it would prove beneficial in delivering qualitatively better justice. Nonetheless, the proposed enabling legislation became enacted in the Offender Rehabilitation Act 2014 for the establishment of twenty-one geographically dispersed Contract Package Areas for CRCs to be let following a bidding process to be completed by December 2014 and contractually effective from February 2015. The General Election of May 2015 saw the Conservative Party reelected for a further term, with an increased majority over New Labour of ninety-nine seats but also with the Liberal Democrat Party losing all but eight of its former fifty-seven seats. The previous coalition became an unworkable entity, leaving the Conservatives with a meagre overall majority of only twelve seats in the House of Commons (cf. 52, fn.35 supra). In David Cameron’s re-appointed Cabinet Chris Grayling was replaced by Michael Gove as Justice Secretary, which post he held until Cameron’s resignation in July 2016 and replacement by Theresa May as Leader and Prime Minister.

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In her first Cabinet she appointed Elizabeth Truss as Justice Secretary, an appointment which she filled for only eleven months until the illfated General Election of June 2017. In an Oral Statement to Parliament on 3 November 2016, she promised extensive reforms to the criminal justice system, and, specifically, the recruitment of an additional 2,500 prison officers by 2018. The Statement was followed up by the publication of a White Paper Prison Safety and Reform (Ministry of Justice 2016, op. cit.) later in that month which confirmed these intentions.11 Then on 8 February 2017 in a Written Statement to Parliament, Elizabeth Truss announced that NOMS was to be replaced by the formation of Her Majesty’s Prison and Probation Service (HMPPS) as an Executive Agency of the Ministry of Justice from 1st April of that year (HCWS 468 of 8/2/17). While the news of additional prison staff was welcomed within the Prison Service, it has to be remembered that at that time the size of the front-line workforce had been reduced by 26 per cent from that in 2010, and the NOMS budget had been cut by almost £1,000 million since 2010–2011 (Prison Reform Trust 2019: 17; Ministry of Justice 2018). The ill-judged General Election of June 2017 was almost disastrous for the Conservative Party, leaving it with no overall majority in the House of Commons, and actually in a minority if 14 seats against all other parties in the parliament (cf. 52, fn. 37 supra). In a re-shuffled Cabinet Elizabeth Truss was replaced by David Lidington as Justice Secretary until he was replaced in turn by David Gauke in January 2018. This electoral debacle meant that the Conservative Party would be unable to introduce any reformative or contentious criminal justice legislative measures into parliament without the support of other parties within the House of Commons. Undaunted, in late July 2018, Gauke announced yet another U-turn within the criminal justice process with the decision that the government intended to terminate the contractual agreements with the eight service-providing organisations operating CRCs two years early from December 2020 onwards due to their failure to deliver the

11

In which document it was stated that the Prison Service had become ‘overly centralised and bureaucratic, stifling staff initiative and innovation’ (Ibid.: 5).

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service expected of them, and at a cost of £170 m (cf. 52–53 supra). In mid-2018 the average daily prison population had risen to 83,430. In June 2019, Theresa May resigned as Leader of the Conservative Party causing a leadership election from which Boris Johnson emerged as Leader and Prime Minister. In his re-shaped government Robert Buckland, a former Prisons Minister, was appointed to succeed David Gauke as Justice Secretary—the seventh holder of the post since the Conservatives took office in 2010, and the ninth since the Ministry of Justice was formed in 2007. Realising the precarious situation of his Party in parliament, Johnson called a General Election on 12 December 2019 from which the Conservatives were returned to office with a majority of 80 seats in the House of Commons.12 Finally, for this section, on 28 June 2020, the government announced that four new prisons were to be built over the next six years to provide 10,000 new places and ‘to boost rehabilitation and support economy’. One would be near Full Sutton in East Yorkshire, a second in NorthWest England, and the further two in the South East of England (Gov.UK, Press Release, 28 June 2020).13 This announcement effectively confirmed that the Conservative government had, like its New Labour predecessors up to 2010, decided to adopt a crime control agenda within criminal justice policy and attempt to ‘build the Prison Service out of its crisis’ rather than take legislative action to reduce the excessive prison population.

Practices and Malpractices in the Penal Process This work has laid bare a range of strategic and operational deficiencies in the delivery of criminal justice, most particularly since the early 1990s in 12 The distribution of the 650 seats in the House of Commons after the General Election of 12th December 2019 became: Conservative 365 (+47); Labour 202 (−60); SNP 48 (+13); Liberal Democrat 11 (−1); DUP 8 (−2); Sinn Fein 7 (No change); Others and Speaker 8 (+2) = 650. (Figures in brackets indicate gains or losses from the 2017 Election. 13 See https://www.gov.uk/government/news/four-new-prisons-boost-rehabilitation-and-supporteconomy (28 June 2020) [Accessed 17/07/2020].

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England and Wales. While it has to be admitted that many prisons have either failed to, or have been prevented from reducing re-offending by those imprisoned which is their primary purpose, that purpose has been hindered in many respects by factors beyond their immediate control. Overarching this situation has undoubtedly proved to be the strategically implemented practice of overcrowding prisons beyond their designed capacity (CNA) through failure to control sentencing policies and behaviour in the courts. Successive governments have been well aware of this situation and have made no substantive attempt to establish such control either by effective persuasion or through the use of legislative measures to do so. This is a matter over which prisons have no control whatsoever. Prison Service management at the strategic level has been insufficiently decisive and robust in its relations with government ministers over resisting overcrowding: a situation largely encouraged by the subservient culture of the senior Civil Service in the Home Office and subsequently the Ministry of Justice in its dealings with ministers since the mid-1990s. ‘No Minister’ rather than ‘Yes Minister’ would have been a more appropriate response when the effective operation of the prisons was being threatened to a critical extent by political policies leading inevitably to continuous levels of overcrowding.14 The Prison Service has for many decades past endured an appalling and even disgraceful climate of industrial relations with its main trades union the Prison Officers Association (POA) which infected every level of the Service to a crippling extent. For many years until the 1990s there was a conspiracy of silence within the senior echelon of the Civil Service within the Home Office and successive Home Secretaries to conceal the fact that the POA was not, in fact, a fully fledged trades union, but was only affiliated to the Trades Union Congress since its foundation in 1938 (Lewis 1977, op. cit.: 133–134). The traditionally militant, belligerent, and, indeed, actually illegal behaviour of the POA Executive Committee towards the management of the Service, hampering reform of dubious working practices, should have been curbed and rejected many years 14

A Reference to the BBC TV Series ‘Yes Minister’ and the book by J. Lynn and Jay, A., The Complete Yes Minister, London: BBC Books, 1984.

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previously, but had become an endemic feature of life within the prisons throughout the Service. It still exists to a considerable extent due to weak strategic management and a reluctance to confront it in a robust and decisive manner as did Derek Lewis during his all too short tenure as Director General between 1993 and 1995. At the local level of prison establishments, the safety, security, and control of prisoners have become threatened by the widespread prevalence of psychoactive drugs and contraband items such as mobile phones in the possession of inmates. The presence of such illicit items points directly to deficiencies in searching procedures in relation to staff and visitors entering the establishment, and the routine searching of prisoners, their cells, and areas to which they have access. This has been a recurring weakness in the operation of prisons for many years past, made the more difficult to overcome in overcrowded prisons and where shortages of front-line manpower degrade the ability of prisons to operate and deliver searching programmes and procedures in a meticulous manner. Searching of staff and visitors coming into prisons is a particularly sensitive issue, but it is undeniable that most illegal substances and contraband items enter prison ‘through the gate’ rather than by any other means, and on, or within, the persons permitted entry or their personal effects. Since intimate searching of body orifices is strictly limited to examination (with consent) by qualified police surgeons on suspicion of crime being committed, it is very rarely invoked. Unfortunately, the only means of countering such activity is by use of non-contact visits, and there has been extreme reluctance to implement such policies due to the inevitably adverse publicity backlash from the media and pressure groups which might result. Making prisons drug-free would undoubtedly reduce the rising rates of assaults, violent behaviour and self-harming incidents that have become prevalent in prisons over the past decade as cited within this work (see also Ministry of Justice 2019: Table 1, and Prison Reform Trust 2019: 12–13). The technology is increasingly becoming available to do so, but at considerable investment cost when simpler but entirely effective means (i.e. non-contact visiting) are also available. It is a political, rather than an operational decision, that will ultimately have to be made.

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It hardly needs to be re-stated here that two of the most pernicious practices affecting prisons have proved to be persistent overcrowding and failure to abandon short-term sentencing by the courts which has contributed to them to a considerable extent. Both of these issues have been discussed earlier in this chapter. This much stated, however, there is an urgent need for prisons and their uniformed staff to return to a more rigorously disciplined and supervised performance of their duties and control of prisoners. This has to be attempted in an era in which the Prison Service has a considerably less experienced workforce than was the case prior to the 2010–2015 manpower reductions imposed upon it, and that retention of staff recruited since 2016 has proved to be problematic.15 Also, it needs to be understood that between 2010 and 2020, HMPPS will have made more than £200 million in budgetary reductions to their operating costs, but at a huge premium to their operational efficiency and safety. In the present and foreseeable economic situation post-COVID19, it is perhaps unrealistic to envisage that the criminal justice process will attract sufficient priority to enable it to recover from the mismanagement of the past decades made manifest in this work. However, that may be, the time has surely come for a Royal Commission on the Penal System of England and Wales to be established as suggested earlier in this work. This is due to the fact that the need for reform has to be lifted above the partisan politics of parliament which has demonstrably proved in the past to be more the cause of, rather than the solution to the recurring problems of the penal system. If this book is sufficiently persuasive of the need for such a Commission, it will have been well worthwhile. At the strategic level, the procession of nine successive Justice Secretaries between July 2007 and early 2021 was scarcely likely to bring stability to a justice process engulfed in a crisis situation that remains unresolved. This stated, the monolithic size and complexity of the 15

Ministry of Justice statistics indicate that in September 2019 the proportion of Prison Service staff with three or less years of service had risen from 2 per cent in 2014 to 42 per cent in 2019, and that the corresponding numbers of staff with ten or more years of service had fallen from 32 per cent to 14 per cent. In addition, 54 per cent of those who left the Service in 2018–2019 had been in the role for less than two years (Ministry of Justice 2019. Tables 3, 4, 13 and 15).

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Ministry of Justice as it has evolved since 2007, and of HMPPS within it with its own problems of strategic purpose and identity, overcentralisation and managerial bureaucracy, have fallen victim to political manipulation both prior to its formation and subsequently. Until these issues are resolved, the prognosis for resolution and penal reform will remain speculative and equivocal.

The Need for Systematic Future Research into the Penal Process This work has chronicled the nature and extent of the descent of the penal process in England and Wales into a state of increasing crisis over the post-War decades since the 1940s, and in particular since the mid1990s. In many respects this remains a crisis which was avoidable since the symptoms of the malaise were clearly evident to successive administrations, but timely advice on their remedial treatment went unheeded or was in some instances deliberately overlooked as a matter of political expediency. The starting point for this now urgently needed treatment therefore lies at the governmental level. There are a number of inter-dependent strands to the research programme which will now be necessary to resolve present situation within the penal process, the key to which is evidently a deliberate reduction in the excessive and unsustainable size of the average daily prison population in combination with a parallel expansion in the development of more effective and demanding community sanctions in which the judiciary can have confidence that less serious offenders can be adequately punished within the community without resort to the use of short-term imprisonment, and without significantly increased public risk. Prisons cannot function effectively and safely in conditions of overcrowding above the levels of accommodation and regime provision which their original design was intended to deliver—that of certified normal accommodation (CNA). This does not imply that more prisons should be built at huge and unnecessary cost to the economy: rather that imprisonment should be used more sparingly and as a measure of last resort (the

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principle of ultima ratio) only when it is unavoidable. Sentencing procedures and guidelines within the courts should, therefore, have to ensure strict compliance with this principle, and the use of judicial discretion must be limited accordingly. Further research, and if necessary legislative action to impose compliance, is evidently needed in this regard. The use of prisons to accommodate persons remanded in custody by the courts and not yet convicted of criminal offences—however allegedly serious—is morally and ethically questionable. Research should be directed towards finding alternative secure provision to meet this requirement where it is necessary, possibly under the aegis of HM Courts and Tribunals Service using private sector resources. The amalgamation of the Prison and Probation Services into HMPPS within the Ministry of Justice since 2017 has failed to resolve the significant historical differences of professional ethos between the two entities and provide a much needed unified Correctional Service other than to a largely superficial extent. This situation precludes the effective operation of a seamless correctional process bridging the custody: community divide in both sentencing and operational terms. Research into the effectiveness of unified and uniformed correctional services in jurisdictions in Western Europe and elsewhere worldwide might discern whether true unification is actually desirable, and if so, to what extent it is achievable in England and Wales. The Ministry of Justice has been described by a former Justice Secretary (Elizabeth Truss in 2016) as being ‘overly centralised and bureaucratic’ (Ministry of Justice 2016, op. cit.: 1). Yet as long ago as 1979 Mr. Justice May and his Committee (Home Office 1979, op. cit.: 100) strongly supported the devolution of operational responsibilities in the Prison Service from central to regional control: a policy that was overturned by the ‘Fresh Start’ initiative in 1977 and onwards. New research might indicate that much of advantage in terms of operational effectiveness might be gained by HMPPS in a return to such regional devolution and enhance the process of unification if it is to be pursued into the future. Successive governments over the past two decades have appeared to show an initial interest in the inclusion of Reparative and Restorative Justice initiatives within the mainstream of criminal justice sanctions,

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only to abandon this interest beyond providing token support for crime victims through private sector funding. A considerable body of reliable existing research evidence strongly endorses the effectiveness of mediated RJ interventions both as a means of diversion of less serious offenders from the formal court process, and also as a means of encouraging offenders to accept responsibility for their offending and make reparation to victims of crime as a sanction within both the non-custodial and the custodial sectors of criminal justice. The size of the prison population since the mid-1990s has been significantly inflated by increasing severity in legislative provisions and of sentencing in the courts, the rates of recall into prison custody of prisoners temporarily released and who breach their licence conditions or re-offend, and by continuing use of short-term imprisonment rather than of community punishments. This situation has been exacerbated by backlogs in the process of reviewing the cases of prisoners serving the formerly indeterminate sentences of IPP, ESPP, and discretionary life sentences for release on the expiry of the custodial terms indicated in their sentences. Many of these sentences were imposed for reasons predicated in the concepts of criminal dangerousness and deterrence invoked in the Criminal Justice Act 2003, and which reliable research reaching back into the 1970s indicated high rates of false-positive predictions. This research should now be re-visited and re-evaluated if more reasoned justice is to be administered. Imprisonment of people is a costly business. Unnecessary imprisonment is an immoral and wasteful abuse of national resources and of the lives of those subjected to its dubiously effective outcomes. Failure to invest sufficiently in rigorous academic research to validate criminal justice policies prior to their implementation in legislation may shield politicians from what they do not wish to hear, but it also extends the life-span of superstitious conceptions of justice (such as that of deterrence) and their retention in its practices. By way of a final observation on this chapter, the contentious issue of the necessity for a formal Penal Code remains unresolved within the countries comprising the United Kingdom. Dating back to the researches of the judge and jurist Sir James Fitzjames Stephen (1829–1894) who made the first recorded (and ultimately aborted) attempt to construct a

10 Summation and Conclusions

219

penal code for Britain, the matter has been resurrected at intervals and remains a live debate. Most of the countries within Western Europe have such codes, as do many others throughout the world including India whose penal code was devised under British rule prior to independence from 1948. The Law Commission for England and Wales considered the proposal for the establishment of a penal code between 1968 and 2008 when the project was abandoned due to the complex and inconsistent nature of domestic legislation—including as it does binding legal judgements and ‘common law offences’—which defied rigorous codification. As of 2009 however, there has been an apparent revival of interest within the Law Commission to pursue the project further, though to what extent remains unclear at the present time.16

References Advisory Council on the Penal System (ACPS). (1968) The Regime for LongTerm Prisoners in Conditions of Maximum Security, [The Radzinowicz Report], London: HMSO. Carter of Coles (Lord). (2007) Securing the Future: Proposals for the Efficient and Sustainable Use of Custody in England and Wales, London: House of Lords, (December). Home Office. (1966) Report of the Inquiry into Prison Escapes and Security by Admiral of the Fleet, the Earl Mountbatten of Burma, Cmnd. 3175, London: HMSO. Home Office. (1979) Committee of Inquiry into the United Kingdom Prison Services—Report, Cmnd. 7673, [The May Report], London: HMSO. Lewis, D. (1997) Hidden Agendas: Politics, Law and Disorder, London: Hamish Hamilton. Maruna, S. and King, A. (2004) ‘Public Opinion and Community Penalties’, in A. Bottoms, S. Rex and G. Robinson (eds.), Alternatives to Prison: Options for an Insecure Society, Cullompton, Devon: Willan Publishing, pp.83-112.

16

Here see: Law Commission, “Newsletter” , London: The Law Commission, 2009 (Spring).

220

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Ministry of Justice. (2013) Transforming Rehabilitation: A Strategy for Reform, [White Paper]. London: Ministry of Justice. Ministry of Justice. (2016) Prison Safety and Reform, [White Paper], Cm.9350, London: Ministry of Justice. Ministry of Justice. (2018) Ministry of Justice Annual Report and Accounts 2018– 19, London: Ministry of Justice. Ministry of Justice. (2019) HM Prison and Probation Service Workforce Statistics September 2019, Tables 3, 4, 13 and 15, London: Ministry of Justice. Roberts, J.V. (1992) ‘Public Opinion, Crime and Criminal Justice’ in M. Tonry (ed.), Crime and Justice: A Review of Research 16 , Chicago, ILL: University of Chicago Press, pp. 99–180. Roberts, J.V. and Hough, M. (2002) ‘Public Attitudes to Punishment: The Context’, in J.V. Roberts and M. Hough (eds.), Changing Attitudes to Punishment: Public Opinion, Crime and Justice, Cullompton, Devon: Willan Publishing, pp. 1–14. Roberts, J.V., Stalans, L., Indermauer, D. and Hough, M. (2003) Penal Populism and Public Opinion: Lessons from Five Countries, Oxford and New York: Oxford University Press.

Appendix 1

Table A.1 Chronological table of Criminal Justice Legislation, Prime Ministers, Home and Justice Secretaries 1945–2020 Year 1945* 1946 1947 1948 1949

Criminal Justice Legislation

Prime Minister

Law Reform (Contributory Negligence) Act 1945

Clement Attlee

(L)

Jul 45

Clement Attlee Winston Churchill

(L)

Feb 50

(C)

Oct 51

(C)

Oct 55

Criminal Justice Act 1948 Legal Aid and Advice Act 1949

1950* 1951* 1952 1953 1954 1955*

Home/Justice Secretary Donald Somervell James Chuter Ede

David Maxwell-Fyfe

The Prison Act 1952 Gwylym Lloyd-George Anthony Eden

(continued) © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2

221

222

Appendix 1

Table A.1 (continued) Year 1956 1957

Criminal Justice Legislation The Sexual Offences Act 1956 The Homicide Act 1957

1958 1959* 1960 1961 1962 1963 1964* 1965

1968 1969

1972 1973 1974*

1975 1976

1977 1978 1979* 1980

Harold (C) Macmillan

Richard Butler

Oct 59

Indecency With Children Act 1960 Criminal Justice Act 1961 Henry Brooke Children & Young Persons Act 1963 The Police Act 1964

Harold Wilson

(L)

Oct 64

Frank Soskice

Harold Wilson

(L)

Mar 66

Roy Jenkins

The Murder (Abolition of Death Penalty) Act 1965

James Callaghan

Criminal Justice Act 1967 Criminal Law Act 1967 Sexual Offences Act 1967 Criminal Appeal Act 1968 The Theft Act 1968 The Murder (Abolition of Death Penalty) Act 1969 The Children & Young Persons Act 1969

1970* 1971

Home/Justice Secretary

Harold (C) Macmillan

1966* 1967

Prime Minister

Edward Heath The Courts Act 1971 Criminal Damage Act 1971 Criminal Justice Act 1972 Powers of the Criminal Courts Act 1973 The Juries Act 1974 Rehabilitation of Offenders Act 1974 The Bail Act 1976 Sexual Offences (Amendment) Act 1976 Criminal Law Act 1977

(C)

Jun 70

Reginald Maudling

Robert Carr

Harold Wilson

(L)

James Callaghan

(L)

Margaret Thatcher

(C)

Oct 74

Roy Jenkins

Merlyn Rees

May 79

William Whitelaw

The Magistrates Courts Act 1980

(continued)

Appendix 1

223

Table A.1 (continued) Year 1981

1982 1983* 1984 1985

1986 1987* 1988 1989 1990 1991

1992*

1993 1994

1995

1996

Criminal Justice Legislation

Prime Minister

Home/Justice Secretary

The Criminal Attempts Act 1981 The Contempt of Court Act 1981 The Supreme Court Act 1981 The Forgery and Counterfeiting Act 1981 Criminal Justice Act 1982 Margaret Thatcher

(C)

Jun 83

The Prosecution of Offences Act 1985 Sexual Offences Act 1985

Leon Brittan

Douglas Hurd

Criminal Justice (Fraud Offences) Act 1987 Criminal Justice Act 1988

Margaret Thatcher

(C)

The Court & Legal Services Act 1990 Criminal Justice Act 1991 Criminal Procedure (Insanity and Unfitness) Act 1991 Sexual Offences (Amendment) Act 1992 The Prisons (Security) Act 1992 Criminal Justice Act 1993 Criminal Justice & Public Order Act 1994 The Police & Magistrates Court Act 1994 The Drug Trafficking Act 1994 Proceeds of Crime Act 1995 Criminal Appeal At 1995 Criminal Injuries Compensation Act 1995 Sentencing Act 1995 Offensive Weapons Act 1996 Prevention of Terrorism Act 1996 Public Order (Amendment) Act 1996 Sexual Offences (Conspiracy & Incitement) Act 1996

John Major

(C)

John Major

(C)

Jun 87

David Waddington Kenneth Baker

Apr 92

Kenneth Clarke

Michael Howard

(continued)

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Appendix 1

Table A.1 (continued) Year 1997*

1998 1999

2000

2001*

2002 2003 2004 2005* 2006

2007

2008

2009

2010*

Criminal Justice Legislation Crime (Sentences) Act 1997 Sex Offenders Act 1997 Justices of the Peace Act 1997 Crime and Disorder Act 1998 Access to Justice Act 1999 Youth Justice & Criminal Evidence Act 1999 Criminal Justice & Court Services Act 2000 Sexual Offences (Amendment) Act 2000 Powers of the Criminal Courts (Sentencing) Act 2000 Criminal Justice & Police Act 2001 Criminal Defence Act 2001 Vehicles (Crime) Act 2001 Football Disorder (Amendment) Act 2002 Criminal Justice Act 2003 Domestic Violence, Crime & Victims Act 2004 Serious Organised Crime & Police Act 2005 Criminal Defence Service Act 2006 Police and Justice Act 2006 Violent Crime Reduction Act 2006 Serious & Organised Crime Act 2007 Legal Services Act 2007 Offender Management Act 2007 Mental Health Act 2007 Criminal Justice & Immigration Act 2008 Children & Young Persons Act 2008 Criminal Evidence (Witness Anonymity 2008 Police & Crime Act 2009 Coroners and Justice Act 2009 Crime & Security Act 2010

Prime Minister

Home/Justice Secretary

Tony Blair

(L)

May 97

Jack Straw

Tony Blair

(L)

Jun 01

David Blunkett

Charles Clarke Tony Blair

(L)

May 05 John Reid

Gordon Brown

David Cameron (C/LD)

(L)

Jacqui Smith Charles Falconer Jack Straw

May 10

Kenneth Clarke

(continued)

Appendix 1

225

Table A.1 (continued) Year 2011

2012

2013

2014

2015*

2016

2017*

2018

2019*

2020

Criminal Justice Legislation Police (Detention and Bail) Act 2011 Police Reform and Social Responsibility Act 2011 Legal Aid, Sentencing and Punishment of Offenders Act 2012 Domestic Violence, Crime & Victims (Amendment) Act 2012 Prisons (Interference with Wireless Telegraphy) Act 2012 Prisons (Property) Act 2013 Justice & Security Act 2013 Crime & Courts Act 2013 Offender Rehabilitation Act 2014 Anti-Social Behaviour, Crime & Policing Act 2014 Criminal Justice & Courts Act 2015 Serious Crime Act 2015 Criminal Cases Review Commission (Information) Act 2016 Policing & Crime Act 2017 Criminal Finances Act 2017 Preventing & Combating Violence Against Women & Domestic Violence (Convention Ratification) Act 2017 Prisons (Interference With Wireless Telegraphy) Act 2018 Courts & Tribunals (Judiciary & Functions of Staff) Act 2018 Criminal Justice Act 2003 (Surcharge) Amendment Order 2019, SI 2019, No. 985, (June 24) Terrorist Offenders (Restriction of Early Release) Act 2020

Prime Minister

Home/Justice Secretary

Chris Grayling

David Cameron

(C)

May 15

Michael Gove

Theresa May

(C)

Jul 16

Elizabeth Truss

Theresa May

(C)

Jun 17

David Lidington

David Gauke

Boris Johnson Boris Johnson

(C) (C)

Jul 19 Dec 19

Robert Buckland

Notes (L) = Labour; (C) = Conservative; (C/LD) = Conservative and Liberal Democrat Administration * General election Year. Legislation Entries in bold text are cited in this work

Appendix 2

Police & Crime Commissioner (Chair)*

Local Police Authority*

Crown Prosecution Service*

Magistrates / Judiciary*

Mediation & Reparation Service*a

HM Prison Service (Group Level)* Local Media (Press & TV)

HM Probation Service (Area Level)* Community Justice Forum (CJF)

Local Government Representation*b

Victim Support Services

Voluntary Public Sector Organisations

Local Education Authority

Penal Reform Groups

Universities & Colleges

Local Businesses / Employers

Secretariat*

Fig. A.1 Community justice forums—Suggested composition (Note * denotes membership of the Standing Committee, a Formation as an Agency of the Ministry of Justice recommended in Cornwell, 2016, op. cit.: 119–121, b Representation at Town/City Council level as appropriate)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2

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Appendix 3

Suggested Topics for Seminar Discussion and/or Student Written Assessments 1. It is widely claimed that the penal process in England and Wales is in ‘crisis’. To what extent is this assertion reasonable, and to what principal causal factors would you attribute it? 2. A former Home Secretary Michael Howard proclaimed in 1993 that ‘Prison Works’. To what extent was (and is) his claim justifiable given current rates of recidivism within short periods following the release of ex-prisoners from custodial sentences? 3. In a Home Office sponsored Review of the Sentencing Framework, Making Punishments Work (Home Office 2001), its director John Halliday in its Report (and echoing the opinion of former Home Secretary David Waddington in the wake of the Strangeways Riot in April 1990) concluded that short sentences of imprisonment were ‘and expensive way of making bad people worse’. If the assertion is credible, how would you account for the lack of a governmental response to it during the 1990s and in the new millennium? © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2

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Appendix 3

4. The declared strategic aims of contemporary criminal punishment are frequently cited as ‘crime control’ or ‘crime reduction’. To what extent are either (or both) of these aims verifiably achievable within democratic societies in the Twenty-first Century? 5. It has been claimed that privatisation of prisons in England and Wales has resulted in reduced financial cost and better delivery of criminal justice services. Is this claim supportable, and if so for what reasons? 6. A widely respected criminologist Philip Bean once wrote: ‘While at one level it is reasonably clear what deterrence is supposed to mean, at another it is not at all certain if deterrence is a psychological theory based on threats, or a sociological theory based on social control, or perhaps both’ (Punishment, 1981:29). How would you assess the criminal justice legislative measures of the period between 1995 and 2005 in relation to this assertion? 7. The compilers of Blackstone’s Guide to the Criminal Justice Act 2003 (Taylor et al., OUP, 2004: xi) described it a as ‘gargantuan Act’, the longest any of them had ever had to grapple with, ‘difficult to identify a coherent theme’, ‘but good in parts’. What do you perceive to be the main purposes of the Act, and what were its subsequent effects upon the prison population of England and Wales? 8. The Criminal Justice Act 2003 introduced, inter alia, provisions for the surcharging of all persons convicted by the courts of criminal offences (CJA 2003: Sections 161A and B). What were the declared purposes of this measure, how was it to be administered, and to whose benefit was it intended to accrue? Discuss its outcomes and the alleged effectiveness of its implementation. 9. Since the formation of the Ministry of Justice in 2007 there have been ten Lords Chancellor/Justice Secretaries appointed to oversee the criminal justice process in England and Wales. Discuss the implications of this situation and its impact upon the strategic management of the criminal justice process. 10. The UK has been described as ‘the imprisonment epicentre of Western Europe.’ To what extent is this description valid, and how do you account for the discrepancies between the nations using

Appendix 3

11.

12.

13.

14.

15.

16.

17.

231

imprisonment the most and the least per hundred thousand of their national populations? The formation of the Ministry of Justice in May 2007 and the Offender Management Act of the same year led to the amalgamation of the Prison and Probation Services as a single Executive Agency. What do you consider to be the main advantages and disadvantages of this arrangement in terms of creating a unified correctional system and its potential for providing a ‘seamless sentencing structure’? The traditional independence of the British Judiciary from the Executive function of government can cause potential difficulties for the administration of the criminal justice process. Identify and discuss these difficulties, and the reasonable extent to which they could or should be overcome by parliamentary legislative action. Outsourcing through privatisation of elements of the work of criminal justice agencies in England and Wales has produced mixed results in terms of outcomes. With reference to the examples within this work, to what main factors do you ascribe this situation, and should it be continued in the future? Is the present practice of confining unconvicted persons remanded in custody awaiting trial outcomes in Local prisons holding convicted prisoners both morally acceptable and operationally unavoidable? To what extent should Reparative and Restorative Justice practices be incorporated within mainstream criminal justice? What do you perceive to be the advantages and disadvantages of the concept in terms of the treatment of crime victims and offenders, and in the interests of public safety and crime reduction? The viability of prisons of the future will depend considerably upon the elimination of drugs and reduction of the violence that stems from them. There is at present a ‘technological gap’ between the development of synthetic drugs and that of detection equipment capable of detecting them. Can a reasoned case be made for visits to convicted prisoners to be conducted on a ‘non-contact’ basis (i.e. behind glass screens separating prisoners from their visitors)? In the White Paper Prison Safety and Reform, Justice Secretary (2016–17) Elizabeth Truss stated that the Prison Service was ‘overly

232

Appendix 3

centralised and and bureaucratic, stifling staff iniative and innovation’ (Ministry of Justice, 2016b:5). To what extent should Prison Governors/Directors, responsible to Prisons Group Directors, and within budgetary limitations, be freed to develop policies and practices appropriate to the specific role and circumstances of their prison? 18. Should overcrowding of prisons beyond Certified Levels of Accommodation (CNA) be made illegal by statute law? If so, how can the principle be enforced in practice? 19. Crime is an inevitable consequence of the democratic process (Anon.). Discuss. 20. To what extent should previous convictions be considered as an aggravating factor in sentencing decision-making in criminal trials? Is to do so a form of ‘double-jeopardy’ that leads to sentencing disparity and unfairness as between similar offenders and current offences?

Author’s Postscript

In reviewing this book on its completion I am aware that in its entirety it presents a predominantly negative image of the state of the prisons of England and Wales during the period since the end of World War 2. It amounts to an account of the confused ideological purposes, political manipulation, strategic mismanagement and operational deficiency revealed within successive chapters of this work. This account was not contrived in any sense, but emerged sequentially from the passage of events to which attention was necessarily devoted: events that were sporadic and often unpredictable as much in relation to penal policy formulation as to its operational consequences in creating the enduring penal crisis of the 1990s and onwards. Prisons are the termini of the criminal justice process, presently lacking any control over the volume or nature of the offenders committed into their keeping by that process. Political failure to control this volume created the scourge of overcrowding that has effectively destabilised almost two-thirds of prisons and their regimes, turning them into penal warehouses impotent to serve any purpose other than containment of the volume. Overcrowding apart, however, the changing nature of

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2

233

234

Author’s Postscript

governmental policies away from crime reduction towards crime control through incapacitation from the mid-1990s onwards brought into doubt the existence of any other realisable purposes for prisons at the present time in place of mere containment. This seismic shift of emphasis has its origins in the naissance of the managerialist ideology of ‘new public management’ during the 1990s discussed in this work, which in turn encouraged both the privatisation of former state functions of which prisons were but one, and the bureaucratic centralisation of these functions away from regional autonomy and control at the point of delivery of their services. The morality of the privatisation of prisons in particular remains a contentious issue since it was conceived largely for pecuniary purposes1 rather than necessarily for the supposed advantages of private sector competition. Through-running this book have emerged three principal and recurring themes that should be of considerable concern to those who may read it. The first is the excessive and extended use that has been made of imprisonment since the mid-1990s in an era in which, with the exception of violence against the person, crime rates recorded by police across Western Europe including the United Kingdom have been decreasing consistently. Further, that this increase has been implemented by successive governments for electoral purposes, ostensibly to appease media-inspired sensationalism of crime and public risk among a widely ill-informed population in relation to actual rates of victimisation. The second theme concerns the number of recorded instances in which governments have implemented hastily devised, eclectic and illconsidered criminal justice legislation for similar purposes while ignoring the advice of acknowledged expert opinion, only to have to withdraw or modify it substantially when it was proved to have failed in operation. The third recurring theme relates to the strategic managerial failure of the Prison Service to overcome its fractured and disruptive industrial relations climate and to reform working practices, resist overcrowding, restore pride, discipline and professionalism, and the autonomy and potential for governors to govern their prisons in an enlightened and 1 Such as to reduce the immediate capital costs to the Treasury of providing new prisons by spreading them over the contractual period agreed for operation of the facilities by private sector entities and their financiers.

Author’s Postscript

235

progressive manner. This much stated, such autonomy can only stem from a decentralisation of operational authority away from what has developed since 2007 as a monolithic bureaucratic entity in the form of the Ministry of Justice and towards a regionalised structure. Standing in the way of such a transition lies the failure hitherto to resolve the historical differences of professional ethos of the Prison and Probation Services and create a truly unified correctional services structure for the future. The ‘forced marriage’ of the two entities from 2017 into HMPPS might satisfy managerialist governmental desires for ‘organisational tidiness’, but it is altogether unlikely to overcome the fundamental incompatibility of the two reluctant parties to the union. This unpromising situation brings to mind a quotation from the work of William Blake (1757–1827) where, in The Marriage of Heaven and Hell, occurs the statement: ‘Prisons are built with stones of Law, brothels with bricks of Religion’.2 Blake’s work, as both poet and philosopher, is replete with apparently conflicting ideas of good and evil, right and wrong, Heaven and Hell, etc.. The tensions that result from these constructs, and their reconciliation, he believed to be essential to progress and creativity. It has to be hoped that such will be the case within the HMPPS of the future. These matters stated, it should also be added that an abiding memory of almost twenty years spent working in the prisons of England and Wales during the most turbulent years of the account within this work is far from entirely negative. It is of working in a number of different prisons with staff of all grades whose dedication to their professional roles of dealing on a daily basis with some of society’s most challenging criminal individuals bordered on heroism. In conditions sometimes far from ideal and occasionally dangerous, their cheerfulness, abundant sense of humour, patience and determination were truly remarkable. That they deserve more enlightened and progressive leadership—both politically

2 Here see: J.M. Cohen and M.J. Cohen (eds.). (1977) The Penguin Dictionary of Quotations. Harmondsworth, Middlesex: Penguin Books, Reprint, p. 61 (28).

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Author’s Postscript

and operationally - has emerged with clarity in this work. The nation owes them a considerable debt of gratitude for the onerous task that they undertake on its behalf. David J. Cornwell July 2021

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Index

A

Appointment of Directors general 53 Assaults in prisons 98, 113, 114, 147, 172, 209, 214 Auditing of prison performance–baseline standards 168 Average daily prison population England and Wales 4, 13

B

Budgetary constraints and restrictions 36, 42

C

Carter Reports 2003 121 Carter Reports 2003 and 2007 97, 104, 121, 206, 207, 209

Centralisation versus devolution of prisons management 174 Civil Service influence on penal policies 38, 146 CNA and Op. Cap. measures of prison occupation 45, 56, 136 Community Corrections Centres (CCCs) 185, 186 Community involvement in corrections 81, 188, 194 Community Justice Forums (CJFs) 186, 188, 192, 227 Conservative Party 10, 35, 43, 46, 55, 104, 107, 108, 110, 208, 210–212 Control in prisons 15, 114, 209 CRCs and failure of 109, 200, 211 Crime control and reduction 9, 29, 62, 64, 230

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 D. J. Cornwell, Prisons, Politics and Practices in England and Wales 1945–2020, https://doi.org/10.1007/978-3-030-84277-2

251

252

Index

Criminal dangerousness–concept and definition 76, 204, 218 Criminal Justice Act 2003 (CJA 2003) 10, 73–77, 79–82, 88, 90, 92, 95, 98, 100, 103, 105, 106, 112, 129, 146, 158, 176, 187, 200, 204, 205, 207, 209, 218, 224, 225, 230 Criminal Justice Acts and legislation 10, 37, 41, 73, 74, 79, 80, 82, 88, 98, 100, 103, 145, 158, 187, 204, 205 Criminal justice U-turns 10, 41, 209, 211 Criminal punishment 8, 20, 29, 38, 63, 112, 128, 156, 168, 177, 180, 191, 202, 230 Custody: community gap or divide within HMPPS 103, 180, 186, 194

E

ESPP and LAS&PO Act 2012 103, 105, 209 F

Falling crime rates UK and Europe 60, 62, 70 Focus on adult male prisons in England and Wales 4 ‘Fresh Start’ initiative 1987 23, 88, 121, 129, 140 G

General Elections 9, 38, 53, 55, 59, 68, 72, 73, 82, 83, 87, 101, 102, 107, 108, 110, 208, 210–212, 225 H

D

Derek Lewis Director General 9, 30, 38, 40, 49, 50, 52, 130, 135, 146, 214 Deterrence doctrine 47 DiIulio on prisons–order, amenity and service 170, 171, 175 Discretion–judicial and executive and independence 14, 15, 18, 19, 31, 57, 64, 70, 78, 80, 99, 104, 143, 154, 217 Dispersal prisons and control units 49, 51, 52, 54, 151, 207 Drugs in prisons–contraband items–searching 63, 147

High Court Injunctions against POA in 1993 and ECHR 2013 130 HMCIP Reports on Prisons 22, 168 HMPPS a marriage of inconvenience 125 HMPPS formation of 2017 7, 125, 127, 160, 175, 180, 184, 203 HMPPS over-centralised and bureaucratic 11 Home Detention Curfew (HDC) 66, 209 Home Office 7, 14, 16, 17, 21, 22, 24, 26, 36–38, 40, 43, 44, 47, 50, 51, 55, 56, 60, 69–73, 79, 83, 84, 88, 90, 91, 95, 121, 122, 128–130, 158, 174, 175, 186, 189, 206, 207, 213, 217, 229

Index

Home Office sponsored reports/inquiries re prisons 20 Home Secretaries 7, 9, 27, 35, 38, 40, 41, 43, 48–50, 52, 55, 60, 82, 87, 89, 90, 102, 122, 129, 130, 142, 188, 208, 213, 229 Humane containment 16, 17, 24

I

Imprisonment rates UK and Western Europe 124 Indeterminate sentencing 209

J

Judiciary and executive 31, 205, 231 Justice model of corrections 18 Justice Secretaries 7, 10, 90, 97, 102, 107, 108, 110, 166, 177, 200, 207–212, 215, 217, 230

253

Michael Howard–Prison Works 9, 44, 53, 63, 112, 200, 229 Ministry of Justice (MoJ) 6, 7, 10, 11, 36, 45, 66, 87, 89, 90, 92–94, 96, 100–104, 106, 108–110, 112, 113, 121, 126, 127, 133–135, 137, 142, 148, 149, 153, 158, 159, 168, 184, 192, 195, 203, 206, 208–217, 230–232 N

National Offender Management Service (NOMS) 79, 80, 90, 95–97, 101, 104, 108, 112, 121, 126, 127, 203, 206, 211 O

Overcrowding of prisons 24, 31, 59, 114, 128, 136, 137, 142, 167, 194, 202, 232

L

Labour Party 9, 53, 55, 73 Law and order politics 21, 29, 38, 43, 45, 55, 60, 186 Liberal Democrat Party 210

M

Managerialism and centralisation– new public management 4 Mandatory minimum sentences 59, 65 May Report 1979 22, 24 Media coverage of crime 24, 38, 98, 103

P

Penal process 4, 6, 8, 9, 31, 44, 70, 72, 81, 160, 180, 202, 206, 210, 212, 216, 229 Penal system 6, 28, 40, 43, 60, 205, 215 Penal welfarism 13 POA and Preston and Liverpool Prisons in 1994 130 POA and Trades Union status 129 POA disruption of prison management reforms and regimes 22, 129 Police and Crime Commissioners (PCCs) 159, 186, 188

254

Index

Prime Ministers 35, 41, 43, 55, 59, 60, 83, 87, 89, 90, 93, 96, 102, 108, 110, 177, 208, 210, 212, 221–225 Prison Act 1877 121 Prison Commission 1952 and Commissioners 88, 121 Prison escapes Brixton 1991 20 Parkhurst 1995 9, 50, 51, 53, 138 Wandsworth 1965 17 Whitemoor 1994 9, 48, 50, 53 Wormwood Scrubs 1967 17 Prison officer grades and working practices 132 Prison Officers Association (POA) and National Executive Committee (NEC) 24, 130, 131 Prison regimes 17, 18, 22, 30, 103, 124, 183, 191, 194, 203 Prison riots, disturbances and civil disorder 111 Prisons Board 1963 121, 122 Prisons budgetary and staff reductions 2010 onwards 10, 208, 215 Prisons crisis 111, 112, 142 Prison Service industrial relations 9, 22, 24, 30, 88, 114, 143, 146, 213 Prison staff morale 45, 79, 126, 137 Privatisation of prisons–effects of 46, 56, 124, 137 Probation Service 7, 10, 45, 70, 72, 75, 78, 79, 91, 106, 109, 127, 128, 136, 159, 160, 174, 187, 191, 200, 201, 210 Probation Service morale 79

Public attitudes to crime 94 Purposes of imprisonment–inconsistency and erratic strategic management 4, 11

R

Reform 6, 11, 13–15, 18, 21, 25, 26, 28, 29, 36, 54, 55, 70–72, 88, 99, 106, 107, 109, 113, 114, 132, 137, 149, 150, 154, 160, 168, 176–178, 189, 206, 211, 213–216, 221, 225 Reformative Ethic needed in prisons 177 Rehabilitation/rehabilitative ideal 13–16, 67, 103, 106, 112, 113, 128, 161, 166, 178, 183, 212, 222 Remand prisoners–case for removal of un-convicted from prisons 27, 41, 150 Reparation to victims of crime 80, 157, 218 Reparative Justice 115, 155, 157, 189, 191, 217, 231 Reparative prisons 11 Restorative Justice 60, 81, 83, 101, 105, 115, 155–157, 180, 190, 191, 217, 231 Retribution/retributive punishment 13, 29, 62, 84, 112, 156 Royal Commission on Penal System–case for 11, 203, 215

S

Searching in prisons 151, 203, 214 Self-harming in prisons 113

Index

Sentencing guidelines–debate 71, 72, 99, 206 SGC and SAP and Sentencing Commission 95, 97–99, 207 Short prison sentences–abandonment of–costs of 6, 115, 151, 160, 186, 195 Strangeways Prison Riot 1990 and Woolf Report into 1991 8, 84

255

Strategic management of prisons 30, 121 Structural turbulence in prison system 4 Sub-Crises of prisons crisis 133, 136, 137, 139

V

Visitation policies 63, 137, 138, 150, 151, 178