Lord McNally University of Hertfordshire lecture
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Lord McNally lecture about the work of the probation service and rehabilitation.
Mr Chairman, I am very honoured to follow in the footsteps of Tessa Webb, the Chief Executive of the Hertfordshire Probation Trust, who delivered this lecture last year. Her lecture was devoted to the work of the probation service. After 18 months as Minister of State for Justice I can honestly say that I stand in awe of the dedication and commitment of those who work in our probation services. Her lecture set out the work the probation service carries out, whilst giving a timely reminder to what was then a relatively new government, of the challenges it faced in its ambitions for a rehabilitation revolution. So I hope my remarks tonight will be complementary to Tessa’s 2010 lecture, as we see how far what we are attempting to do is, to use her words, “grounded and realistic” in addressing a complex area of policy.
My links with the University of Hertfordshire Student Law Society Public Law lecture series goes back a number of years. I have had the opportunity to give a number of lectures at the Hatfield Road site; but this is my first opportunity to speak here at the main campus.
I am, however, no stranger to this auditorium. I and my father-in-law are regular visitors to the Sunday night concerts by the de Havilland Philharmonic Orchestra. I have also attended lectures here by the Master of the Rolls and both the past and present Vice Chancellors. So I feel quite at home.
I am less familiar with the St Albans Penal Affairs Group. I am grateful to the Reverend Dr. Andrew Coleby, the Social Responsibility Officer for the Diocese of St Albans for initiating this invitation. My brief tells me the following about the Group.
Their commitments are to:
- inform themselves about criminal justice issues, and relate that to their faith and theology
- inform others and raise awareness within the diocese, providing study materials and inputting into continuing Ministerial Education
- tell congregations about opportunities that exist to help practically, and to be able to recruit volunteers from across the diocese
- have a voice in the political environment and bring pressure to bear on policy-makers
- build partnerships with bodies that share their concerns
- link up with similar groups in other diocese
I know at least 1 person who would describe that as ‘the Big Society’ in action. Whatever you call it, I welcome it and salute it. I welcome also the patronage and support given to the group by the High Sheriff and Lady Cecil.
In July last year I went to St Albans Abbey hoping to hear a lecture on the theme of Magna Carta by Lord Bingham. Unfortunately Lord Bingham was too ill to deliver the lecture and it was read for him by Judge Baker. I did, however, come away from that lecture having purchased a copy of Lord Bingham’s book called ‘The Rule of Law’. Lord Bingham died a few weeks later, leaving me with a lasting regret that I had not got to know him better during our time together in the Lords. ‘The Rule of Law’ is a slim volume; but I recommend it to anyone who wants to understand and appreciate better that concept of the rule of law.
Although I am the proud recipient of an honorary Doctor of Laws from this University, I am not a lawyer. I say that not in any defensive or pejorative way, simply as a statement of fact. However the 18 months I have spent as Minister of State at the Ministry of Justice have made me appreciate more deeply than ever before the importance of the concept and the reality of the rule of law.
This was brought in to sharp focus earlier this summer when, for a couple of days, we saw the frightening and shocking consequences when a community seems to break free from the restraints of the rule of law. I use the terms ‘frightening and shocking’ to apply not just to the communities directly affected. I think they were emotions felt by the whole country as we watched events unfold on our television screens. Then came another, equally strong emotion, one most accurately called righteous anger, a desire to see wrong-doing prevented and criminality punished. It is an entirely justifiable emotion; but one which itself needs the constraints of the rule of law if the response to the riots is not to be another kind of mob rule. All parts of the justice system, from the police to the courts, from prison to probation are studying and learning lessons from the events of this summer.
Last year Tessa Webb outlined the work of the probation service in trying to prevent re-offending. Since that time we have had the post-riot statistics that show that some 73% of those brought to court had previous convictions or cautions. Faced with those statistics and a 50% re-offending rate among those who have served a prison term in general, the answer to the question I pose as the title of my lecture ‘Rehabilitation Revolution: pipe dream or penal policy for the 21st century?’ receives from many in the general public and much of our popular media a resounding and risible ‘pipe dream of course’.
Yet if we are not to make a concerted effort to break in to the cycle of re-offending we face the prospects of a prison population moving inexorably towards six figures with the prospects of ever greater cost to the tax paper simply to warehouse these offenders.
On the other hand, if we could make significant inroads into the re-offending cycle we have the triple plus of victims avoiding the trauma of future crimes, the tax payer not having to foot the bill of further incarceration, and a rehabilitated prisoner making a positive contribution to society.
Let me be clear, this is not to put the needs of the victim behind concern for the offender. On the contrary, we are working on proposals that put the victim at the heart of our policy responses.
Nor do I deny that prison works. There are people in our prisons who have done evil things and who need to be punished and society protected from them.
However it does not need too many prison visits to realise that there are many, many inmates of our prisons who could and should be helped both for their own benefit and for the benefit of society as a whole.
So whilst realising that the summer riots make the case for a rehabilitation revolution a tougher ask, I nevertheless think it is the right way to go.
So once the anger has subsided, once communities begin to be rebuilt, both structurally and emotionally, where do we go in terms of developing strategies and policies that reduce offending and re-offending? How can we help them create the opportunity to build stable societies, where individuals value themselves and each other, and have a shared interest and responsibility in seeking the “common good”?
At the same time, we should be concerned with what we might call ‘background offending’: the level of crime that we, as a society, live with from day to day. It’s tempting to assume that there is an irreducible ‘critical mass’ of crime, beyond which it’s impossible to affect outcomes. I do not believe that.
There is no stage at which we should abandon an offender or an ‘at risk’ person, no situation in which we should not, at least, try to confront the reasons for, and the consequences of, offending behaviour.
I think we need the perspective of time and a little distance properly to try to make sense of what we’ve seen in recent weeks. But that doesn’t mean that, for the moment, we sit paralysed, engaged in a sterile debate about who’s too macho and who’s too liberal as far as punishment and rehabilitation is concerned. Because there is a prize to be won, and we must keep it in sight.
That means acting now to devise measures and programmes which are designed to stop people offending in the first place; to support them in turning away from re-offending; to help neighbourhoods who want, and deserve, a say in how initiatives can benefit both those who break the law and the people among whom they live. It’s a very big canvas to work on.
So I want to share with you this evening some of the things we’re doing to make the “rehabilitation revolution” a reality. I believe that groups like yours have a vital role to play. I welcome the fact that you’re able to meet to exchange views, and to try to discern imaginative solutions to problems that individuals and communities face every day.
These are times of great challenge and change for all of us; changes forced upon us because of the financial and economic climate; debates taking place within our communities about how we value ourselves and each other; and challenges in the way that both central and local government, and local agencies, provide support, advice and assistance to those who need it.The big question is, I think, how do we measure ourselves as a just and compassionate society, and how should we treat and aim to rehabilitate those who break the law?
Youth Justice reform
The reform of the youth justice system has to be at the heart of the revolution. You won’t have been surprised to hear and read that young people have come in for special attention from parts of the media and others in recent times.
The Justice Secretary has said he is “dismayed” to see repeat offenders, whether children and young people, or adults, back in the system. I share that dismay. Like him, I also share a determination to introduce radical changes which will ensure effective punishment and reform to tackle re-offending.
But I am frustrated that, in some quarters, there appears to be a deliberate determination to avoid an intelligent debate about the most productive ways of reducing reoffending, of preventing offending in the first place and, perhaps most importantly of all, trying to ensure that our young people do not get sucked into a life of crime, with the unwanted potential to become fodder for the criminal justice system for years to come.
If we get our youth justice proposals right, then we can look forward to making great strides in preventing young people offending, and providing the interventions necessary to make that a reality, as well as helping to support those whose young lives have already been affected by criminality.
For the very first time within the criminal justice system, we will treat those aged 17 as children and young people for remand purposes, rather than as adults. This means fulfilling our commitment to the United Nations Convention on the Rights of the Child.
One of our key priorities is greater flexibility in youth disposals. It cannot be right that young people are subject to the so-called ‘escalator’ principle, which restricts the use of out of court disposals, even where the offending is minor and does not merit a full court hearing. Adult offenders have the opportunity for out of court resolution; children and young people should be given the same opportunity and not forced artificially through the system.
We also need to be more imaginative in the range of disposals available to the courts.
On the youth justice side, let me mention referral orders as an example. They provide a reparative-based process for holding young people to account for their actions. Our proposals will allow courts to make repeat referral orders when they consider it appropriate, rather than be forced to operate within a strait-jacketed, over-prescriptive environment which takes little account of the individual circumstances of the young person and the potential, or not, for them to re-offend. I believe that our proposals will have a much more beneficial long-term effect.
By the same token, restricting the use of custodial remand to those young people who have at least a realistic prospect of receiving a custodial sentence makes sense. For the rest, imaginative, intensive, meaningful disposals are the way forward.
Can I say a little about community sentences generally, before going on to consider some of the specific reforms we’re making?
Our proposals in the Legal Aid, Sentencing and Punishment of Offenders Bill will make community sentences versatile disposals, which can be tailored to suit different offenders and offences. They will provide punishment, rehabilitation and public protection. It is a fact that community sentences are more effective than short prison sentences at reducing reoffending.
The majority of offenders comply with their orders and complete them within the required time. In 2010 two thirds of all community sentences ran their full course, or were terminated early for good progress. Those are outcomes we need to build on in order to secure a rehabilitation revolution.
A key link to the different types of community disposal is a restorative justice programme.
Restorative justice has an important part to play, but only so long as it is used appropriately, and that interventions are of sufficiently high quality and there are effective safeguards in place for victims. Our aim is to introduce a framework for best practice at all stages in the criminal justice system, and help build further capacity across the piece.
Restorative justice is not a soft option. Facing up to wrongdoing can be a difficult and unpleasant process, particularly for those for whom it is their first experience. It is perhaps even more challenging in some ways than some of the more traditional criminal disposals.
The work we’ve already done on restorative justice and other reparative programmes demonstrates that many offenders find the process demanding and tough. We require offenders, as society would expect, to take an active role in repairing harm, acknowledging the impact of what they’ve done, and facing up to the consequences.
But we need a system of restorative justice that is based not on retribution or revenge, but on a shared desire to achieve reparation and reconciliation.
As a form of mediation, I believe successful restorative justice programmes benefit individuals, communities and society as a whole. When restorative justice works, it has the potential to draw the sting of personal animosity and of pain. It can have a healing effect and the power to transform people and their lives. In this context, I’d like to say something specifically about our work on neighbourhood resolution panels.
Neighbourhood resolution panels
A commitment to explore the concept of neighbourhood justice panels appeared in the Coalition Agreement for government, and the Ministry of Justice business plan incorporated a commitment to publish plans to test the approach in July 2011. The responses we have received from the public and stakeholders have reaffirmed our commitment to them.
Neighbourhood resolution panels (as they’re now known) employ restorative and reparative techniques to deal with low level crime, anti-social and nuisance behaviour, and they’re overseen by criminal justice professionals.
Neighbourhood volunteers sit on a panel to broker a meaningful outcome for both the victim and the offender. It is part of a process which requires the offender to accept a deeper level of responsibility for their actions.
Agreement between the victim, the offender and the panel might result, for example, in some reparation being undertaken, or a formal sanction or caution being given. There are already panels in existence in Somerset, Norfolk and Sheffield. Importantly, they are not subject to central control or direction, but have evolved because of the particular circumstances local to them.
There is not, and there will never be, any suggestion of a vigilante approach when we talk about neighbourhood resolution panels, nor will there be a diversion from the magistrates’ courts of those types of offence that are properly dealt with there.
Through this process we will make good our promise to put decision-making back in the hands of local communities, providing a meaningful outcome for victims and a proportionate response to misbehaviour that, although it may be criminal, is not serious enough to prosecute.
Since the formation of the three existing panels, I’ve been extremely encouraged to see that another 35 areas have expressed an interest in taking part.
I hope that as the process continues, we’ll see more and more communities taking a direct interest in this project, and helping to make a real difference at a local level.
I’ve no doubt that a range of community organisations, including those that are faith-based, have a vital role to play in making these panels a reality. I encourage you to think about ways you might get involved.
It’s also worth bearing in mind that there’s a great deal of informal restorative justice work done by the police, which doesn’t involve a criminal sanction. That’s important, because one of our goals must be to divert young people away from the criminal justice system whenever we can properly do so.
We also want to work with sentencers to improve the advice they get about how they might take restorative justice into consideration as part of the formal court process, through the use of pre-sentence reports and victim personal statements.
We’ll be establishing guidance, in co-operation with youth offending teams and the probation and prison services, to develop more and better restorative justice practices, both pre- and post-sentence.
So far, I’ve described in some detail our ambitions as far as restorative justice is concerned. I make no apology for dwelling on this particular aspect. It’s important that we give this our full attention.
‘Sorry’ is indeed sometimes the hardest word, and we need to put appropriate systems in place so that offenders can mean it, and demonstrate that they mean it. I think it’s important that groups such as yours engage with us to have that debate about providing the best possible outcomes for both victims and offenders.
I want to say a few words about reparation in a wider context.
Of course, we recognise that for some, prison is the only acceptable, safe place to be. Our proposals will not mean, as some have colourfully claimed, that we will be flinging wide the gates of the jails, imperilling communities as a result.
But we are determined that those who are in jail should not be left to stagnate, with no sense of direction and purpose, and with no prospect of a useful future once they are released. For that reason, we propose the concept of “working prisons”.
There are very real benefits both to prisoners and to society from having prisoners working. Most sensible people want a justice system that punishes offenders appropriately and then helps them to go straight once they’re released. Our ambition is for a culture of work to be the norm for serving prisoners. How can it be just and right that enforced idleness damages both the prospects of an offender of reforming, and increases the risks to the wider community of further offending?
We will set up effective reparative schemes, so that those who cause harm to their victims and communities make amends. As far as financial reparation is concerned, our proposals to implement the Prisoners’ Earnings Act will see more funds provided to Victim Support, for them to use for the benefit of victims and communities.
So we have been careful to balance the demonstrable public interest in reparation being made, with the very real incentives prisoners and communities get from working. Giving prisoners the experience of work, learning discipline and skills is, in my view, a critical factor in cutting re-offending.
Our proposals for intensive community payback go hand in hand with working prisons. I want to see much more community involvement in the choice of projects worked on by those sentenced to unpaid work. Our proposals will involve a greater opportunity for local participation in nominating projects.
A greater degree of community involvement means that people will become more interested in, informed about and engaged with the justice system, and want to make a real difference to the quality of their environment. In addition, offenders giving something back so visibly to the community in this way can only increase public confidence in the validity of such disposals.
Perhaps you, either individually or as a group, have ideas about the contribution which you could make. I’d be very happy to discuss this when we have a chance to talk after my remarks.
I know that you, High Sheriff, have a particular interest in initiatives to preventing offending, and in those which focus on the rehabilitation and aftercare of offenders.
Drugs, alcohol and mental health
One of the areas I am most concerned about, and determined that it should be at the forefront of what we have called the ‘rehabilitation revolution,’ is the issue of drug and alcohol misuse, and the treatment of offenders with poor mental health.
The Department of Health now has the responsibility for funding all substance misuse treatment in prison and in the community. In my view, this provides an opportunity to join up spending, ensure joint commissioning of services by health and criminal justice agencies, and to facilitate a more coordinated approach to help individuals recover from alcohol and drug dependence.
This is an important step forward. But there is more to be done. I don’t just mean dealing with the scourge of drug availability inside prisons, which simply prolongs or develops an addiction, and the defeat of which will form an important step in restoring an offender’s health and well-being.
Our commitment is to rehabilitate offenders from drug dependency to drug-free lives, to the benefit of society as a whole.
I’m talking about the steps we can take to identify and assess those with such addictions as early as possible and ensure they receive sufficient treatment and support to aid their recovery.
As necessary, we will also take steps to divert some individuals out of the criminal justice system, particularly those with mental health problems, to provide them with effective treatment.
The first step is through targeted sentencing. We are bringing forward provisions in the Bill which will create more robust and effective community sentences.
A key part of those community sentences is that, where appropriate, offenders will have better access to, and assessments for, a requirement for drug or alcohol treatment, or a mental health intervention.
The Bill will also allow for greater flexibility in tailoring effective treatment and recovery options to the needs of the individual offender. We will remove the statutory minimum of six months duration periods for drug and alcohol treatment requirements, so that probation officers can use their professional judgement to decide and tailor, in conjunction with health providers, the best choice of treatment and rehabilitation for an offender.
Removing the minimum duration is likely to encourage greater use of the requirements as sentencing tools where appropriate. For example, for those who may not require six months or more of treatment, but who would benefit from an intensive programme as part of their community order.
For some 3,000 people a year, who are low-risk individuals with mental health problems, custody is often the first time that they are assessed, diagnosed and treated. Putting them behind bars is often financially wasteful.
We therefore propose to also simplify the assessment process for mental health treatment requirements as part of community orders, to ensure those people with mental health needs are identified early on and that they receive the treatment they require without incurring unnecessary delays.
That leads me onto our second key step, the implementation of liaison and diversion services, for both adults and young people. These services seek to identify early on those individuals with health issues, including substance misuse, mental health, personality disorder, learning disabilities and wider health issues.
It is our intention that liaison and diversion services are available in police custody suites and at courts by 2014. Early results in the diversion pilots for young people appear promising, enabling them to be channelled away from the criminal justice system into more effective interventions.
So what else are we doing to address the issues of drugs and alcohol addiction?
In June, we launched drug recovery wing pilots in five prisons. These wings are focused on abstinence, being drug-free and connecting offenders with community drug recovery services on release. Importantly, they are focussed primarily on drug-misusing offenders sentenced to between 3-12 months in custody where there is limited time available in prison to complete treatment interventions.
We are also working with the Department of Health and local areas to co-design payment by results approaches for drugs and alcohol recovery. These pilots cover individuals in the community, including offenders on short sentences or on a community order with a drug rehabilitation requirement.
We are also aware of the consequences of the misuse of alcohol. For many, this is the epitome of petty offending on a Friday or a Saturday night, as well as an issue that poses serious health risks and leads to the breakdown of personal relationships and family life. We need to break this cycle.
So, in addition to changes to the alcohol treatment requirement, we want to encourage the greater use of alternative options for delivering alcohol-specific interventions, such as better use of supervision, specified activity or programme requirements.
The reforms we propose are designed to enable agencies to work together. Courts, police, probation, health services – all must engage with each other. We need to be better ‘joined up.’
An important part of achieving a sustainable reduction in offending is our plan to expand payment by results schemes, and I’d like to say something about that.
Payment by results
Payment by results is intended to change the way in which services are commissioned to deliver better outcomes for the public at the same, or less cost.
We want to apply the principles of payment by results to all providers of rehabilitation services. This means testing the approach with offenders serving a range of different sentences.
Through a series of initial pilot projects, we will explore how we can encourage and develop a dynamic and effective mixed market of provision.
Let me highlight just a few of the initiatives we’re undertaking.
We are working towards commissioning a range of different payment by results pilot projects. Two large scale pilot projects will focus on offenders serving community sentences.
We’re also launching two further projects targeting offenders in custody, particularly those sentenced to terms of less than 12 months.
Finally, we are inviting providers to come to us with new and innovative proposals for working with and rehabilitating offenders. We want to take the most promising of these proposals and test their potential through further pilots.
For all of the pilot projects, we will pay those providers who are successful, and make a real change to offenders’ behaviour. Providers who fail to make an impact will bear the cost of that failure.
Two projects, in London and Greater Manchester, are testing a different approach to payment by results, based on justice reinvestment principles. This is designed to improve partnership working at a local level, to reduce crime and cut re-offending rates.
If local partners can work together to reduce the demand across the justice system, we are committed to sharing some of the savings with them. Those funds can then be invested in more work to reduce re-offending.
Our aim for payment by results is to promote a market which recognises the different strengths of different providers, whether they be from the public, private or voluntary and community sector.
And I want to be very clear that this is not about privatisation, simply that harnessing the talents of all is an important step in delivering successful schemes. Flexibility is crucial in this respect.
The piloting approach will allow us to test a number of different options before determining an implementation strategy. But it will not happen overnight. Issues of re-offending and drug and alcohol dependency are complex and deep-seated, and will take time to confront successfully.
But to my mind this is another element of the rehabilitation ‘prize’. We have to innovate and to look where we haven’t looked before for solutions - within the public sector, in the private sector and from voluntary and charitable organisations.
The rehabilitation revolution is not the soft option. It is the rational response to complex problems.
It seeks to involve individuals and communities because if individuals and communities continue to feel ill-used by the criminal justice system, we will struggle to build the confidence necessary for justice to be done, and to be seen to be done and felt to be done.
Public safety and a fair and efficient criminal justice system must always be among the highest priorities of government. But government alone cannot deliver them. Communities and individuals have their responsibilities too, if we are to benefit from peace and security under the rule of law. That is no pipe-dream, but a key component of a just society. I believe that the rehabilitation revolution points us in the right direction, which is why I have so much valued putting my case to this audience tonight.