Martin Partington: Spotlight on the Justice System

Getting the balance right between punishment and rehabilitation in the criminal justice system is one of the most difficult policy objectives. Whatever politicians try to do tends to cause public outcry. Nevertheless, there is a widespread acceptance that locking people up in gaol is – for many – not the best way to prevent reoffending. For years, senior figures, including very influential judges such as Lord Woolf and Lord Phillips have argued that there should be more investment in probation services and new approaches to community sentences.

The Government has very recently published two consultation papers on these interrelated topics.

In Punishment and Reform: Effective Community Sentences the Government argues that it needs to strengthen the community sentence regime in order that it is not regarded as a soft option.

The Consultation Paper argues: “Too many community orders do not include an element which the public and offenders would recognise as ‘punishment’. It is a fundamental principle of justice that those who are found to have done wrong should be punished. …[I]n this consultation we explore how we can ensure that all community orders have a clear, punitive element of Community Payback, restriction of liberty backed by electronic monitoring, or a financial penalty.
“This means developing the punitive options available to the courts. Provisions in the Legal Aid, Sentencing and Punishment of Offenders Bill will increase the maximum length of curfews so that we can keep offenders off the street for longer, stop them socialising in the evenings, and remove opportunities for them to cause trouble. We have also ended the unsatisfactory situation in which unemployed offenders sentenced to Community Payback could work for just six hours per week. Instead, these offenders will be required to work more intensively in a way that more closely replicates a normal working day and week. We want to build on these tough punitive options further by being creative with the technology available for monitoring offenders’ movements, and by exploring the use of asset seizure as a standalone punishment that could be added to community sentences.
“We also want to see fines used more flexibly to punish offenders. Financial penalties should not simply be reserved for the lowest-level offenders. In the right circumstances, a heavy fine can be just as effective a punishment as a community order. In this consultation we set out proposals to support sentencers to make more flexible use of the fine, and ask for views on how we can improve the information available to courts to ensure fines are set at the right level.”

Any new appproach to community sentencing has to be underpinned by appropriate enforcement, which is – in the main – the task of the probation services. In the other Consultation Paper Punishment and Reform: Effective Probation Service, the Government sets out ideas for new approaches to the delivery of probation services.

The Paper argues that the key features of ‘our core proposition for change’ are:

• a stronger role for public sector Probation Trusts as commissioners of  probation services;
• devolving to Probation Trusts the budget for community offender services, from which Trusts will commission services to meet local need;
• some services, such as electronic monitoring of curfew requirements, may continue to be commissioned at national level where we can get most value for money for the taxpayer;
• Probation Trusts will retain responsibility for providing advice to court on sentencing and the enforcement of those sentences;
• consistent with the probation role in protecting the public, they will be responsible for making certain ‘public interest’ decisions for all offenders (such as the initial assessment of their risk and the resolution of recalls and breaches);
• they will continue to supervise directly those offenders who present higher levels of risk;
• opening up to competition all probation services not directly provided by Probation Trusts. This will include competing the management and supervision of lower risk offenders, alongside other services to reform offenders such as accredited programmes. Those providing services under competition will be increasingly incentivised through payment by results to reduce reoffending;
• ensuring a diverse market of providers by encouraging the participation of the voluntary, private and public sectors, alongside new models for delivering public services such as joint ventures, social enterprises and Public Service Mutuals;
• allowing Probation Trusts to compete for services. In such cases, we will require them to become separate entities, independent of those Probation Trusts which are responsible for commissioning, giving advice to court, managing higher risk offenders and taking public interest decisions as set out above;
• strengthening local probation presence as the front line of offender management. We will support the joint commissioning of services for offenders between probation and key partners such as local authorities, health and the police;
• there may be potential over time for other public bodies, such as local authorities or, with a broadened statutory role, Police and Crime Commissioners to take responsibility for probation services. For the time being, we propose to make Probation Trusts accountable, through their contractual arrangements with the National Offender Management Service (NOMS), for working with Police and Crime Commissioners.

The Paper concludes: ‘If community penalties are to be taken seriously by offenders and command the confidence of sentencers and the public, they need to be effectively enforced. Targeted enforcement activity by Her Majesty’s Courts and Tribunals Service (HMCTS) has already brought improvements to fine collection rates, and this consultation sets out our plans for further improvements. Likewise, for community orders we want to ensure that offender managers have sufficient discretion and powers to ensure offenders comply with their sentence.
‘To be truly effective, sentences in the community should not only punish and reform offenders, but also ensure that offenders pay back to society for the harm they have caused. This consultation asks for views on how we can go further in ensuring as many offenders as possible make reparation to victims and take part in restorative justice approaches whenever appropriate.’

These seem to me to be ambitious aims, in principle to be welcomed. The challenge will be selling these ideas to the public, and ensuring that in these cash-strapped times there are adequate resources available to ensure that the objectives of the plans can be delivered. The Consultations run until the end of June 2012. Further developments will be reported here in due course.

For an introduction to the proposals see http://www.justice.gov.uk/news/features/punishment-and-reform