Punishment,sentencing and probation

When compared with prison sentences, community penalties are frequently viewed as somehow falling short, certainly in terms of their punitive content. The view that consequently community sentences should be ‘toughened’ up has informed significant legislative changes in England and Wales over the past 30 years, most pertinently through the introduction of the concept of ‘punishment in the community’ in the Criminal Justice Act 1991, and the more recent introduction of legislation (Crime and Courts Act, 2013), which provided that all community penalties should include a punitive component. The policy trend since the 1990s has been towards the introduction of more punitive orders, a greater variety of community penalties, and the melding of different requirements within one order (Bottoms, 2017). In essence, the punitive elements of community sentences have been ratcheted up, in order to conjure up the penal imaginary that community sentences compete with prisons in terms of their penal bite. Interestingly, recent analysis by Bottoms (2017) based on data produced by the Ministry of Justice both pre and post the introduction of the Crime and Courts Act, 2013, shows no substantive differences in the composition of Community Orders, suggesting that sentencers did not necessarily consider the need to toughen up community sentences in the same way that policy-makers did.

That said, what is evident from more recent data is that there has been a fall-off in the use of community sentences in England and Wales. This trend pre-dates the imposition of the Transforming Rehabilitation reforms; however, as the growing volume of evidence attests, the issue of sentencer confidence in community sentences is undoubtedly impacted by the continued difficulties in the delivery of community sentences in the post-TR landscape. The Justice Committee’s Report on Transforming Rehabilitation (2018) presents more damning evidence of an ill-thought-out policy that has failed to deliver the much vaunted ‘rehabilitation revolution’, and the Committee ultimately concludes that the entire TR project should be revisited:

On the longer-term future of TR reforms we conclude that we are unconvinced that the TR model can ever deliver an effective or reliable probation service. We recommend that the Ministry of Justice initiate a review into the long-term future and sustainability of delivering probation services under the models introduced by the TR reforms, including how performance under the TR system might compare to an alternative system for delivering probation. (HoCJC, 2018: 6)

There is clearly much to digest in the Justice Committee’s Report. The shifting sands of government contracts with Community Rehabilitation Companies (CRCs) is discussed, including the fact that the government has paid additional monies to the CRCs to maintain service delivery after an identified short-fall in funding based on a service model that envisaged more clientele. Concerningly, the Justice Committee was unable to identify exactly how this additional money provided to CRCs has been spent, and as a result it calls for greater transparency in the management of such contracts. The ability of government departments to manage complex contracts is queried, as is the possible risk of a private provider withdrawing from the market. Witness for instance the recent calamity caused by the collapse of Carillion, a global company with a diverse portfolio of government contracts ranging from building hospitals to providing maintenance in prisons (House of Commons Public Affairs and Constitution Committee, 2018). In response to the concerns of the Justice Committee, the Ministry advises that it is ‘increasing its contract managing capabilities’ (HoCJC, 2018: 22) by providing further training to its staff. But at what cost? One stark figure presented to the Justice Committee by the Chief Inspector of Prisons is that there are now more people working for HMPPS managing CRC contracts than there are carrying out inspections in the entire prison estate. ¹

At the same time there is clear evidence of a shortfall in staff working directly with people subject to probation supervision. We know that the NPS has not recruited sufficient numbers of staff at frontline grades, but precise information on the staffing situation in CRCs is unclear. While information on staffing levels within the public sector is published by the Ministry of Justice (2018), extraordinarily, there is no requirement for CRCs to publish information on the numbers of staff working directly with clients. Information from the Probation Inspectorate shows, however, that redundancies within some CRCs have led to exceptionally high caseloads, with the attendant impact on service provision and undoubtedly on staff wellbeing (HMIP, 2017). Further issues are surfaced regarding the weakening of local partnership arrangements following TR. The committee heard evidence that local stakeholders, including sentencers, were unaware of the range of services being provided in their area. Work with the courts is within the remit of the National Probation Service (NPS) and Community Rehabilitation Companies (CRCs) do not work directly with the courts. Evidence to the Justice Committee from the Magistrates’ Association shows that sentencers do not have sufficient information about the services being provided by CRCs, an issue bound to affect confidence in community sentences.

The relationship between probation and sentencing, a central focus of this special issue, is clearly one that relies on an understanding of the way in which a sentence will be delivered, and a confidence that it will be done so competently. The relationship between probation and the courts is addressed by Gwen Robinson in her contribution to this special issue. Charting the role of probation in the courts in England and Wales, she highlights the value of a specialist probation presence within the courts, but also some of the challenges of service delivery within a fragmented landscape. The impacts of changes to legislation are explored by both Andrew Henley and Matthew Cracknell. Andrew Henley unpicks the differential conceptions of rehabilitation set out in law, policy and practice by highlighting discrepancies between the time periods in which a person is considered to be ‘rehabilitated’ in Rehabilitation of Offenders legislation and the Offender Rehabilitation Act, 2014.

Matthew Cracknell highlights the net-widening effects of the ‘Through the Gate’ reforms which have led to more people being subject to supervision for longer periods. However, as we know, this has not necessarily meant improvements to service provision. In fact the Justice Committee recommends that rather than extending post-custodial supervision, the government should introduce a presumption against short custodial sentences, a position already adopted by the Scottish government. The question of public confidence in both sentencing and the point at which prisoners should be released are issues that have recently been very much to the fore of public debate. This topic is considered by Lorana Bartels and colleagues in an article exploring public attitudes towards sentencing and parole in Australia. Fundamental questions of what probation should be about are set out in Rob Canton’s thought provoking contribution to this special issue, which considers probation and the philosophy of punishment. That there is a long tradition of thinking about the purpose, substance and justifications for community sanctions is evident in Peter Raynor’s long-view perspective on probation and sentencing. As ever, we hope that this special issue contributes to these continuing debates.

Nicola Carr