Last week the Justice Committee took evidence about the state of prisons, and plans for prisons, from the prisons minister, Rory Stewart, and a number of his officials - Mike Driver, CFO of the MoJ and Justin Russell, head of ORC (Offender Reform and Commissioning).
Very visibly and curiously absent was one person – the actual head of the Prison Service, Mike Spurr. He was referred to once or twice but no-one explained why he wasn't there, as he and all his predecessors have been on such occasions in the past. So none of the people present works, or ever has worked, in a prison, or managed prisons: yet the sessions was about the work of prisons and what is happening in them.
Though - another oddity – it is increasingly difficult to distinguish Stewart's role from Spurr's: Stewart often talks as though he is the one running prisons, with absolutely no sense of the difference in role between being minister and actually managing the Service (odd reversal of Michael Howard's insistence that he was only responsible for 'policy', never 'operations'). Which makes plausible the rumour that Stewart, bizarrely, is so utterly smitten with prisons that he wants to move over to head the Service, believing that he is the man to save it.
I think I have seen this movie before. Spurr is being held locked in a room in a high tower within Queen Anne's Gate, being interrogated night and day until he signs the confession that he personally sabotaged the Spending Review settlement by moving all the decimal points around at random (which would explain a lot, come to think of it). Stewart keeps trying on his new uniform as Director General of HMPPS in front of a large mirror and ordering extra gold trim here and there, occasionally snarling at his toadying ORCs, 'Hasn't he signed yet?'. Meanwhile Spurr's loyal staff are arrested one by one or re-posted to Dartmoor or loaned to the Bulgarian prison service. But one loyal secretary has found out where Spurr is being held and is as this moment inching along the window ledge, high above Petty France, towards Spur's cell, a mobile phone clenched in her teeth, the phone number of the Clerk of the Justice Committee already on rapid dial...
TO BE CONTINUED
As a respite from prisons and the MoJ - today, railways and the DT.
My Daily Mail journalist brother Ben and I don't always see eye to eye politically, but in this recent article from the Rail Magazine, he reaches precisely the conclusion I have about prisons - that the 'public v private' slanging match is misconceived, since it is so evident that railways (like prisons) can be run equally well, and equally badly, by either sector.
One might think that the debate would be about just where and in what circumstances it makes best sense to use the two sectors, and how best to use them, and how best to get them working together. Dream on! All we ever hear - from Left, from Right, from politicians, from journalists, is 'Two legs good, four legs bad'. Or, of course, the reverse. So often in politics, it seems that people prefer to chant than to think.
The system isn’t perfect, but rail is enjoying a renaissance
Ben Le Vay
A friend has suggested travelling from Oxford to Vladivostok by train. Naturally, I agreed straightaway, but added: “Do you know the one bit across all those nations, railway systems and two continents that you can’t do by a modern, electrified railway?” Receiving the answer ‘no’, I said: “Oxford to Didcot!”
Despite the billions of pounds we have spent on the Great Western electrification - part of the very welcome railway renaissance in this country - there is no plan to finish this job. So, can this local problem begin to tell us what is shamefully shambolic about our history of national railway decision-making?
In this particular case, diesel trains will be required to do the last few miles, which flies in the face of a Government minister recently vowing to get rid of polluting diesels altogether (RAIL 847).
The problem has been partly solved by hybrid trains, which start off as powerful electric expresses from Paddington, but then somewhere en route such as Reading a diesel engine under the floor starts rumbling like a Ford Transit. Yes, these trains are nice and new, but they are neither as spacious nor as comfortable (nor even as fast under diesel power) as the original 42-year-old High Speed Trains they are replacing.
Just think about the environmental logic. You make the new electric trains as light and quiet and clean as possible… then add six-tonne diesel engines plus fuel tanks under the floor for the bits where you can’t be bothered to finish the job. I realise they will be brilliant for running into areas never likely to be electrified, such as the Cotswolds beyond Oxford, but the main line trains should not be lugging all this kit back and forth.
I also realise that electrifying the last few miles to Oxford might be better done with a total upgrade of the junction and route (I hope this explains the pause in construction), but surely this should have been anticipated. As should a lot of things, frankly. Network Rail seemed surprised that its super-duper engineering train (for installing electrification masts more quickly) cut through the signalling cables that NR itself had buried in the trackside ballast only a few years ago to defeat the cable thieves (with the result the holes are now having to be dug by hand, while the multimillion-pound electrification train idles alongside).
I welcome the new longer electric suburban trains from places such as Maidenhead, but Network Rail gives the impression of being slightly surprised that longer trains mean longer platforms (in as much as they weren’t ready on time), and that more people need more car park spaces (ditto). It is now scratching around for what it calls ‘stabling’ - overnight sidings with room for all the new longer trains, which don’t fit in. “The clue is in the word ‘longer’,” said my Oxford chum drily.
To be fair to the railway, if the politicians called a halt to the overspending and delayed electrification, with the result that many branch lines in places such as the Thames Valley and around Cardiff do not get electrified after all, suddenly you have to keep the diesel fleet in their sidings, and thus have nowhere to keep all the shiny new electric trains. It’s a messy and wasteful compromise.
The London end of the Greta Western electrificarion scheme has gone ahead pretty well and is a part of the new Crossrail service that starts next year. designed to whisk people from Maidenhead to Shenfield (why, one might ask), getting far more people across central London without to change to the overburdened Tube (that's really why). Taking full sized trains, this new route could have offered Norwich-Ipswich-Colchester expresses straight through London to Bath-Bristol or Cardiff, but sadly that seems unlikely. It is to get commuters into London more smoothly.
And this led me to a staggering realisation about all our current grand railway schemes. They have all been done before, far cheaper in real terms, and then scandalously scrapped.
Crossrail: A brilliant idea of letting trains running into Paddington from the west continue under London to the City (including Farrngdon) in one seamless move.
Done before: In 1866, the ‘Widened Lines’ allowed trains coming into Paddington, and St Pancras and King’s Cross, to continue to Moorgate and (erm) Farringdon. Services closed gradually after the Second World War, but Thameslink uses part of it.
East West Railway:A brilliant scheme to link Oxford and Cambridge by a new direct route via Milton Keynes and Bedford, and also offering useful connections between many main lines.
Done before: Look out west just north of Oxford station, and you will see a rusting swing bridge over a canal and howl in frustration. For this shows it was all done long before, in 1851, with this bridge to reach its own station (Oxford Rewley Road).
Or look above you as you speed up the West Coast Main Line at Bletchley, and you will see a splendid concrete flyover completed in 1960 by British Railways, to let the Oxford-Cambridge ‘Varsity Line’’ run more smoothly and to have better freight connections, together with brand new electric signalling - only for it all to be closed and odd bits of the line scrapped and built over.
Northern Powerhouse: A new, speedier electrified trans-Pennine route is needed to better connect Manchester with Yorkshire. The Government promised this, calling it HS3, then back-pedalled to merely electrifying the existing (rather constricted) routes. Then it back-pedalled harder, possibly abandoning even that idea.
Done before: A new electrified route was opened in 1953 by the then newly nationalised British Railways to link Manchester and Sheffield via smart new concrete tunnels at Woodhead. The through route was closed in 1970 and the empty tunnels are now used for electric cables.
HS2: This is a promised whole new line between London, the Midlands and the North, costing somewhere probably double the estimated £28 billion. They have somehow managed to spend a billion pounds already without building an inch of track!
Although it will end at Euston within a few hundred yards of the HS1 route to the Continent, astonishingly there will be no connection, so European-size (larger) night freight and day passenger trains will be unable to continue up HS2.
Meanwhile, although it will pass within a few miles of Heathrow, it won’t go there either. It will stop instead at a place called Old Oak Common in west London. Ever needed to go there? Nope, me neither, but it will link to Crossrail - the new HS2 station there will obliterate some of the sidings that Crossrail needs.
Done before: The Great Central Railway was the last great main line built within England. Edwardian visionary Sir Edward Watkin laid it out for high-speed running and to the European loading gauge (the space under bridges and tunnels), so that larger European trains could fit through. He also planned to build a Channel Tunnel and connect it up properly.
The line wasn’t finished until the beginning of the 20th century, which is why its London terminus (Marylebone) is the only one with art nouveau flourishes in its decor.requirements, and so on - are made by civil servants and ministers, not private companies.
The truth is more complex than press, politicians, public or pundits want it to be. Both nationalised and privatised railways can be brilliant and well-funded… or bungling, costly failures.
Today’s picture is mixed, but basically improving things. Many sensible bottleneck-busting schemes such as flyovers and connecting curves are going ahead around the country without much fanfare, and in recent years more people have travelled more safely at higher average speeds than ever before. In other words, a success - a nationalised company putting right earlier nationalised blunders, but getting private investors to pay for much of it (in the form of new trains, and so on).
But just as out-and-out capitalist privatisation (in the form of Railtrack) was a disaster, so complete renationalisation (including train operators and owners) as a monolithic state corporation would be, too.
If you lived through half a century of BR’s nationalised gigantic bungling, failure, closures, retreat, shabbiness, frequent strikes and terrible accidents, and now realise that so much that was undone is having to be expensively redone, why would you be in any rush to board that particular train once again?
Some things are still going wrong - I would like to see the brilliant open access competition of the East Coast route adopted elsewhere (without the far-fetched franchise bids that cause that profitable route to keep collapsing), and please finish electrification to Oxford - but much, much more is going right.
Investment is at a level only our Victorian forebears matched. The jobs being done, stations such as St Pancras and King’s Cross being wonderfully revamped, and the trains being built today (in three new factories) would not have made the wildest wishlist of the most devout 1980s rail fan.
So, as our American chums put it: if it ain’t bust, don’t fix it. Meanwhile, I’m off to Vladivostok… via Didcot. R
■ Benedict le Vay is a Fleet Street journalist, and author of Britain From the Rails: A Window Gazer’s Guide and When Train Meets Volcano.
David Gauke's public statement of what has been obvious to anyone interested in prisons for decades, that our over-large prison population is not in the public interest, and needs to be reduced, is brave, right and necessary (1). I admit that I did not think Gauke had it in him: good for him. It is certainty a huge improvement on his predecessor but two, Liz Truss, whose celebration of the doubling of the prison population as some kind of triumph for the compassionate society was an appalling piece of work, notable for some statistical legerdemain (2). Ken Clarke, Justice Minister at the start of this decade, made a similar statement, but didn't survive long enough to do anything about it (3).
Welcome though it is, nevertheless it is also a disgraceful announcement. Why? Because only a few years ago, his predecessor but four, Chris Grayling, ripped into pieces a probation service which, according to all inspection reports, was functioning reasonably well, and then sold half of it off, on the assurance that by so doing, supervision for short term prisoners could be introduced which would infallibly bring those high re-offending rates down. And that there was no other way of achieving this. And now his successor, blithely ignoring the huge damage done to the lives of probation staff and to offenders, assures us that, you know, short sentences are ineffective in reducing re-offending, so we should just stop using them. But first, guess what – we need to 'restore confidence' in the ruined service. The sheer gall! The sheer waste!
Of course, one readily understands how difficult it would be for Gauke to admit that his Tory predecessor, still in the Cabinet, wrecked the probation service, to no purpose. Any more than he can admit the Grayling wrecked the prison system by sacking one in four prison officers. There is surely something very wrong, unhealthy, about a political system where there are no consequences for such irresponsible and destructive policies as Grayling's. Grayling can't be called to account, because he isn't Justice Secretary: the man who is Justice Secretary can't be called to account, because he isn't Grayling: the civil servants can't be called to account, because they were 'only obeying orders' (actually, there is a limit to that defence - but that is for another time).
What is more astonishing than Gauke's amnesia is the silence both from Labour and from commentators (an egregious example of Korsakoff's syndrome in public policy, to which I drew attention in my very first blog (4)). Is no one going even to ask what becomes now of the Grayling reforms – whose main purpose was to put in place post release supervision for short sentence prisoners? It is easy enough for Government to draw a veil over the recent past, if everyone else is asleep.
So much for this gift horse's dubious parentage. Now for careful examination of its mouth.
While Gauke's statement is undoubtedly a major breakthrough in challenging our addiction to ever-increasing incarceration, I doubt that it will make a big difference where it is needed, in our prisons. For several reasons.
Yet, even in these most favourable circumstances, the reduction achieved was very temporary. Very quickly, the resurgent right wing of the party under Michael Howard rediscovered the delights of mass incarceration ('prison works'), with results that we are still living with. The actual reduction lasted little more than 12 months (7)
Compare that with today. Prisons are known to be in deep trouble - but have not lost control or failed in the highly visible way of the 1990s riots. (The Service is thus the victim of its own success in dealing much more confidently with disorder.) We have instead a 'slow disaster', while Government constantly affirms its belief that prisons can rehabilitate offenders - just not the short sentence ones. The PM herself is no liberal, with an authoritarian record in the Home Office. The Tories do not command a Commons majority. May presides over the most bitterly, and publicly, divided Cabinet anyone can recall, and a Tory party desperate split over Brexit, with many MPs and even Cabinet Minsters on the right of the party openly conspiring for her removal. Gauke must have No 10's tacit support for his policy, but in the prolonged period of public debate needed to bring about change, can he count on her open, public support for sending fewer offenders to prison – and indeed, would her support be helpful? Would not Tory MPs and newspapers, plotting her removal. be tempted to mobilise against such a policy simply in order to damage her (as they did on the Windrush scandal)?
(Indeed, in Scotland the Tories are already opposing exactly the policy that Gauke proposes, as a “soft-touch approach which is …. making life miserable for victims of crime across Scotland...The pendulum has swung too far in favour of criminals” )(8).
The debate on crime generally is also unhelpful to reform. After 20 years of steadily falling crime – that would have been the time for sentencing reform, but Labour always flunked it – crime, including knife crime and homicide, is on the up again (9). Moreover we are about to enter a period of great instability, worry and most likely, serious economic difficulty, as a result of an unbelievably chaotic Brexit process. In such circumstances, the Right traditionally uses fear of crime and desire for punishment to displace news that is inconvenient and encourage scapegoating and authoritarian responses to problems. The prospect of the Mail coming out for rationality in sentencing seems more remote than ever.
Not that this is just a Tory problem. At least the Tories do have a record, from time to time, of seeking to tackle our over-use of custody. Labour has, to my recollection, never once raised the issue in the past 30 years. They do not do so now, in the midst of the worst prisons crisis for a generation. And I think not just for the very obvious reason - the gift that this would be to the Mail. I do not see much sign of Labour MPs being genuinely interested in penal reform (I mean, beyond wanting bad things to happen that they can blame the Tories for) – as some certainly were in the 80s and 90s. The Lib Dems of course do propose radical change in sentencing – perhaps another way of saying that it isn't yet practical politics (10).
So its hard to see where Gauke can look to for support for a policy which is never going to be a vote winner, or a career-maker, but which can so easily be a vote loser, or a career-breaker.
2. understanding is lacking
To tackle such a long-standing and complex problem, you must first understand it. And Gauke's analysis is lacking. He focuses on sentences under 12 month - because they are less effective at reducing future re-offending. Not because they are key to the pressures on prisons. And indeed they are not key to prison over population. In fact, the proportion of the adult sentenced population serving sentences under 12 months has in fact nearly halved – from 12% in 1992 to 7% now. Short term prisoners are less of a problem, in terms of numbers, than ever before.
Shouldn't we first understand, then, what has caused the doubling of prison numbers since 1993? Particularly since Gauke's predecessor but two maintained the doubling was a good thing, and the very last thing we should do was get the courts to ease off?
Until quite recently, the MoJ itself provided something of answer to that question: 'The story of the prison population', periodically updated, but curiously, not since 2016 (wasn't that when we decided we had had 'enough of experts'?) (11). That document spells out the main factors: the courts are passing more long sentences (4 years or more) and fewer short ones (under 12 months); that is in part explained by changes in the mix of cases before the courts (more sex, drugs and violence against the person, fewer theft and burglary); recall to prison of ex-prisoners released under supervision has increased.
Some of this is precisely the territory marked out by Truss, and raises some very sensitive issues indeed, for reformist liberals as much as the Right. Hands up anyone wanting to suggest that sentences for sexual offences are too long – here, the liberal Left is if anything more punitive than the Right. (But don't the arguments against over-use of prison apply equally to all offences?) A thorough look at why we send to many more to jail than we did 25 years ago, or than our neighbours do now, and what to do about it, is thus a lot trickier than just doing away with the shortest sentences. Indeed, Truss was right in this, that the reformists have for too long been able to get away with the lazy, unfocussed assertion that we just need a lot less imprisonment, let 'em out. On a closer look, it isn't so simple. So, a thorough analysis is necessary.
The MoJ paper is not, though, adequate. For one thing, it is clear that this has been a dynamic process over a quarter of century, and at different times there have been quite different changes at work - at one time, for example a driver was longer sentences for burglary, but now volumes of burglary are in steep decline. The journey has been a complex one. A 'before and after' comparison is no longer enough.
More fundamentally, there seems a lack of inquiry about the puzzling relationship between actual crime, as experienced by victims, and the processing of crime by the criminal justice system (CJS). While crime as experienced by victims halved, levels of crime as recorded by the police changed much less. Volumes coming before the courts reduced, yet the prison population doubled. We can explain some of this. But we need a better stab at understanding the whole picture than we have, if we truly want to understand the phenomenon of prison numbers doubling while crime halves. Is there so much crime that it can halve without affecting the work of the CJS – which would seem to make the CJS pretty irrelevant in terms of crime control? Or has the CJS been freed up to focus on the more serious stuff? Or on the contrary, has it responded by drawing into the process offences that might earlier have escaped formal process?
We also badly needs an account that goes beyond the one sanction, imprisonment. Why has use of fines and cautions declined over so many years? Could they recover? Why did volumes of community sentences soar in the 1990s and early 2000s then fall so in the past decade? (12). What about an authoritative summary of evidence on the endless recycled arguments for high incarceration – the Michael Howard argument that prison reduces crime through incapacitation, and the argument that it deters – arguments still rehearsed as though self-evidently true? (13)
And yes – drugs: political dynamite, but we at least need to be looking at the practical effects of a growing movement towards decriminalisation abroad, in Portugal, Canada, Norway.
Finally, an interest of mine – cost benefit analysis. What does it cost to prevent a crime through imprisonment, compared to community penalties or for that matter, crime prevention?
(Criminologists may say, some of this is already published. Sure, but some isn't. And if political debate is to be informed, it needs pulling together in an accessible way.)
Of course, one readily understands why Gauke focuses publicly on short sentences: so as not to frighten the horses. And he signals pretty clearly that this is just a first effort, that he indeed does see the need as he puts it, 'a wider debate about what punishment means'. Quite so. But given the average tenure of Justice Secretaries, will he have time for more substantial analysis? And will he be allowed to do anything with it?
3. impact will be limited, and slow
The third reason for scepticism is the scope for making an impact, and timing.
True, Gauke has a number of options for reducing numbers besides tackling shorter sentences – more use of temporary release to prepare prisoners for resettlement (as in his recent announcement on employment of ex prisoners) (14), faster deportation of foreign nationals who take up around 10% of the prison system (latest statistics show some progress, but the lawyers have so many ways of disrupting removal), reducing recalls, encouraging great use of parole (but will the Warboys changes inhibit that?).
But if one looks just at shorter sentences, the impact must be modest. There are 5,000 adults in prison serving sentences under 12 months. There seems to be no public data breaking this group down by offence type, so it's hard to make any guess about how many would have received a community sentences, if convicted post-Gauke. But the CJS is littered with interventions intended to contain sentencing discretion that haven't worked as planned. If the courts are allowed to make their own judgement of who, exceptionally, deserves a sentence under 12 months, history suggests there may be more than expected. There will be some 'over-shoot' – courts think a prison sentences is needed, but are deterred from passing one under 12 months, so go for 12 months or more i.e. sentence inflation, not deflation. There will be some sentenced to community sentences or suspended prison sentences who end up in jail anyway, for breach proceedings etc. I suggest a reduction of 3,000 would be good going.
And assuming legislation is needed – for no-one has any authority to tell courts not to pass sentences under 12 months – it will be liable to sabotage and accident, delay and total loss in the present fervid state of Parliament (I except Labour would find some reason to oppose or sabotage it up). If legislation were introduced, passed and brought into operation by autumn 2019 – quite a tall order – the full effect would not be had until late 2020.
So, a reduction of maybe 3,000 by late 2020. But on latest forecast the prison population will have risen by 1,000 by then. So, a reduction in overcrowding of about 2,000. Welcome, of course, especially in locals (a relief more than those numbers suggest, because of the heavy churn of short sentences prisoners). But not a game changer. The percentage overcrowding of the system as a whole will not much change (and if the population carries in rising as presently forecast, will be back to where it was by the mid-2020s.) There is a risk that we do no more than stop the continuing rise in prison numbers, but thereafter achieve no substantial reduction, as has happened in the US since the late 2000's.
A final point – none of this holds out any prospect of helping with the financial crisis of the MoJ, highlighted in my last article. It is not remotely enough to save significant money, though perhaps enough to postpone building new capacity to meet rising numbers (for which, though, no funds exist!)
Hence, only one cheer. For the moment.
But the importance of Gauke's statement is far greater than its practical effect. It is the first time in a quarter of a century that Government has allowed itself to think about sentencing (if one excludes Truss panegyric to mass imprisonment, and Clarke's passing and soon forgotten comments) – and to do so by reference to facts, knowledge, and calculations about cost and benefit. If that can be built upon, the potential benefits are far greater and go a lot further than just temporarily easing prison numbers. We might actually start to create a rational, evidenced sentencing structure.
And the first step needn't depend on politicians – indeed, can't. Those who want to see such a change could and should be getting on with the ground clearing, evidence gathering and analysis I have suggest as an essential precondition for major and sustained change.
3) https://www.theguardian.com/politics/2010/oct/20/kenneth-clarke-pledges-cut-prison-population. It is sobering to see how closely his plans mirrored Gauke's - but as a Europhile liberal Tory, his days were numbered. Absit omen!
5) 'Home Office (1990) Crime, justice and protecting the public. Cmd 965, London: HMSO. People always forget that first bit. It did not say, tout court, that sending people to prison is merely an expensive way of making bad people worse.
6) Home Office (1991b) Prison disturbances April 1990: report of an inquiry by the Rt. Hon. Lord Justice Woolf Cm 1456, London: HMSO
8) Liam Kerr, Tory Justice spokesman, Scottish Parliament. Daily Express, 6 February 2018
9) 'Crime in England and Wales: year ending December 2017'. ONS 26 April 2018. But overall, no change in violent crime as a whole, and violent crime remains at a far lower level than in the 1990s. But try telling that to the average Mail reader!
10) The Lib Dems manifesto at the last Election proposed legalising cannabis and ending imprisonment for possession of drugs for personal use
12) Plainly, it's not all down to the effect of privatisation of probation, as some claim – see Peter Dawson's article https://www.huffingtonpost.co.uk/entry/new-evidence-gives-short-shrift-to-short-prison-sentences_uk_5b02ea5de4b0c240179abead?guccounter=1
13) I had my go at the Howard argument here: http://www.julianlevay.com/articles/doubling-prison-numbers-did-not-halve-crime
The Ministry of Justice has run out of money. If it were a business, it would have to declare itself insolvent. If it were a local authority, its members would be be liable to disqualification. But don't worry: it's only a Government Department, and you, dear reader, will keep the MoJ going, come what may!
The MoJ's increasing financial desperation is the story of austerity across the public sector. Can spending possibly be cut further? Has austerity simply run out of road?
Let's go back to the 2015 Spending Review. By 2015, the last Justice Secretary but 4 - or is it 5? - Greying or Failing, some such name - had already made unprecedented deep cuts, getting rid of 1 in 4 prison officers, closing 20 prisons (though without reducing the prison population), cutting prison officer starting pay, and cutting the probation service into many pieces and flogging off half it, closing over 100 courts.
Then, in SR 2015, the then Justice Secretary - some bloke called Glove or Rover, possibly? - promised still further heroic cuts, in return for massive spending upfront (1). Given £700m to 'modernise' courts, MoJ would save £200m a year by 2019-20; given £1,3bn to build 9 new prisons, it would save £80m a year by closing old ones, plus an unspecified amount from escorting contracts, as more court cases were dealt with by video links to prisons, instead of actual physical presence.
That has now all unraveled pretty much completely.
First, it was found that the earlier cuts had gone too far - prisons were spiraling out of control and it was impossible to recruit and retain staff. So the cuts were partly reversed, though the larger part remains in place (2).
Then it was found that the new probation service contracts weren't sustainable, and it became necessary to pay the operating companies more that the contracts specified (3).
So the SR 2015 figures had to be revised upwards for the 2017-18 budget (4).
Then the 9 prison building programme fell apart. Not one brick has been laid. The programme is now so delayed that no prisons will be fully operational by 2020, perhaps two fully operational in 2022 (5). As a result, running costs can't be reduced. indeed for the next 5 years, running costs must increase, because of double running and transitional costs of closures (6). [Edit: looking back, I see that in my time, we managed to open eight new prisons in just four years. But that was using PFI, which we now realise, was entirely wicked, neo-liberal, useless - unless, that is, you really, really need prisons built quickly].
But the reality is that closures of any kind look increasingly problematic. On MoJ's own projections, there will be 1,700 more prisoners in 2021 than there were in 2017. And there is a 1 in 3 chance that that will actually be 2,600 more (7). Well, 2 new prisons should do it – if heavily overcrowded from day 1. But of course, MoJ won't have the money to run them, because you can no longer close the old ones. Meanwhile capital funding, unused because of the slippage, was diverted to meet MoJ's higher than budgeted running costs.
Then the court 'modernisation' programme turned out to cost more than expected, helping to cause an overspend in 2017-18 (8). And according to the NAO, the planned savings from the programme are now looking.....dubious. So, more expense, but possibly less savings (9).
Moreover, there is growing evidence that obliging more defendants to accept court appearance via video links instead of being physically present - a vital element in MoJ's planned savings both in court escort contracts and court management - may in various ways disadvantage the defendant and result in serious, institutionalised injustice (10).
Then, pay: SR 2015 budgeted 1% for pay inflation but MoJ smashed the 1% ceiling with a 1.7% settlement for prison officers last year - and does anyone seriously think the POA can be shoved back within a 1% ceiling this year, or next? But where will the money for more than 1% come from? Hardly 'efficiencies' - those have all gone to pot.
Meanwhile, there were other pressures: delays in implementing new fees, demand for legal aid up. It's all very difficult, Minister!
Thus the original budget for 2017-18 had to be increased during the year by half a billion pounds (8).
(I daresay many local authorities would like the opportunity be able to go back to Treasury in year with their bowl: “Please Sir, can I have some more?” But Government reserves that right to itself).
And MoJ is still unable to say just how much it will spending this year, 2018-19: it is still busy discussing things with Treasury. We'll let you know later what we need, MoJ's Permanent Secretary tells us – and Parliament. The Estimate says £6.9bn (11): my guess would be the final figure will be around £7.4bn.
The steady upward drift of MoJ spending plans since SR 2015 can be put thus:
2017-18 2018-2019 2019-20
SR 2015* 6.7 6.2 6.0
budget 2017* 7.0 6.6 6.4
Est 2017-18 7.8
2018-19 6.9 (prov)
Actual 7.4 (??my guess)
Note * These figures were published excluding depreciation: I've added £400m, about the average in the accounts for depreciation, to make them comparable with the other figures).
Thus, the MoJ is now plainly totally adrift from plans agreed in the last SR. What next?
Well, the real terms cut in MoJ spending since 2010-11 has been in the region of 20-25%. The cost of those cuts is that the reasonably decent prisons and probation services we had in 2010 have been devastated, violence in prisons has doubled, self-harm has doubled, maintenance contracts in prisons have collapsed, Inspectors report widespread, unacceptable failure of both prisons and probation services, 100 barristers chambers are boycotting legal aid work, 258 courts have closed. All informed people (outside of the MoJ, naturally) agree that the entire criminal justice system of this country has been very seriously damaged by years of cuts.
Surely austerity must now have run its course.
Except that the criminal justice system is very unlike the NHS, or schools, or social care in one crucial respect, when it comes to spending. Demand can in part be controlled – as it cannot, realistically, for hospitals or schools or social care.
Not only that, it should be controlled. Since the mid 1990s, the prison population has doubled: at just the point where crime has halved. (For an account of why we can be sure rising prison numbers did not cause crime to fall, see below, http://www.julianlevay.com/articles/doubling-prison-numbers-did-not-halve-crime ). We have been building prisons almost without a break for a quarter of a century, opening 31 new prisons, and building around 25,000 places within existing prisons. Building has cost some £3bn, enough to build 25,000 new homes. Running costs have risen by over a £1bn a year, enough to recruit 40,000 extra teachers or nurses. And all this spending has precious little good: over-crowding is not reduced, re- offending rates have barely budged. Yet community punishments are much cheaper than imprisonment and in many cases, achieve just as much.
Government can reduce use of imprisonment. It has been done before - by Tory Home Secretaries (12).
If then, why not now?
(1) Spending Review and Autumn Statement 2015, HMT Nov 2017 Cm 9162
(2) Financial Times, Nov 2, 2016. Hilariously, Tory Justice Ministers have to make sure they never admit they are doing this because they cut too deep in the first place, oh no. Less hilarious is the grotesque misrepresentation of this partial restoration of a cut as an increase or additional staff, though in fact numbers will remain about 15% lower than in 2010. That's still a cut or fewer staff. These people will share the same circle of Hell as estate agents. (Actually, they probably were estate agents.)
(3) See NAO investigation here: https://www.nao.org.uk/wp-content/uploads/2017/12/Investigation-into-changes-to-Community-Rehabilitation-Company-contracts.pdf
(4) Autumn budget 2017: https://www.gov.uk/government/publications/autumn-budget-2017-documents/autumn-budget-2017
(5) Latest information is that work will begin in November 2018. A large prison cant be built and made fully operational within 25 months.
(6) See my report for the Prison Reform Trust: http://www.prisonreformtrust.org.uk/Portals/0/Documents/Julian%20Le%20Vay%20paper%20FINAL.pdf. In fact, the new prisons wont open before 2021 and that is outwith the period of the SR 2015 settlement, so the issue of how these costs are to be funded has yet to be addressed.
(7) See tables at https://www.gov.uk/government/statistics/prison-population-projections-ns
(8) MoJ Memorandum on Supplementary Estimate 2017-18, 7.2.18
(9) See National Audit office investigation here: https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
(10) An important issue exposed by Penelope Gibbs, whose article I republished with permission here:
(11) See MoJ's Memorandum on the 2018-19 Estimates here:
(12) In the wake of the catastrophic riots of 1990, and the Woolf report, Tory Home Secretaries Kenneth Baker and Kenneth Clarke reduced the prison population by 4,000, by encouraging use of community sentences, enabling the closure of 2 small prisons. Then Michael Howard discovered that 'prison works', and Jack Straw agreed, triggering the steepest rise in numbers in history, with consequences we are still grappling with.
I have been reading David Cannadine's new survey of 19th century Britain, the first I've read since A Level History half a century ago. 19th century Britain doesn't seem to have changed much, but of course I have: we see things differently now. These were the things that struck me this time round – and they are relevant to the perpetual struggle, especially in the epoch of Brexit, to define our future by reference to our past.
1. Britain's economic dominance came earlier than one thinks - and it was astounding
During the early 19th century Britain became the first, and for a while, the only industrial power on Earth, that is, with widespread use of steam-powered machinery. The drivers behind this were various. Technological innovation, of course: but also the agricultural revolution of the late 18th century, the rapid population growth that it sustained (the population rose 50% between 1750 and 1800 and then doubled again by 1850) , a world trading empire (by 1815, an astonishing 1 in 5 of the world population were within the British dominions), backed by global naval supremacy and the first global capital market in the City (overseas investment increased five fold from 1800 to 1850). Nor were goods and capital the only exports: in the 1850s over 2 million Britons (including many starved Irish) emigrated, mostly to North America and the Antipodes, founding an Anglophonia that persist today.
The bare figures of Britain's economic dominance by mid-century are astounding. Britain produced half the world's coal, half the world's iron, consumed half the world's cotton. Britain had more miles of railway than France and what would later become Germany together. Per capita GDP was two-thirds bigger than in what would later become Germany. Britain accounted for nearly two thirds of the worlds shipping. London was the biggest city on Earth.
As I suspect is often the case, we reached our apogee almost before we fully realised it.
2. But it didn't last long, and by 1890 we were on the defensive
The technological innovation of the early industrial revolution occurred first here. But other countries soon caught up in volume – the USA surpassed us in steel production in the 1890s, Germany by 1900. By 1914 we were producing half as much steel as Germany – and a quarter as much as the USA. By the 1890s voices were heard urging that protectionism replace our national religion of free trade – sure sign, then as now, of a country on the defensive. More seriously still, other countries seemed more adept at subsequent waves of technological innovation: the car and the air plane were developed in Germany and the USA respectively. Britain continued to do well in pure science: but other countries were pulling ahead in applied science. Thus began the long, sad story of our amateurism, under-investment in skills and failure to apply new technology, which persist to this today (1).
3. 'Imperialism' came late in the century and seemed a bit irrational, even then
It is striking attitudes to 'empire' changed during the century. In the first half, the focus was on trade, not land. Indeed, successive Foreign Secretaries struggled to prevent local enthusiasts from conquering bits of the world on their own account (not easy, before the global telegraph network). Thus Napier in Sindh, Raffles in Singapore, Ellenborough in China, Dalhousie in Burma. In London, such adventures were often seen as regrettable, merely adding to administrative and military expense. In 1829, the entire staff of the Foreign Office was 28 – including a Turkish interpreter (2). Britain was a great naval power, but kept its land army small.
But as the century progressed, enlargement of Imperial dominion became an end in itself, reinforced by the fear that other burgeoning imperial powers would grab the bits still vacant, or even threaten existing British possessions – Russia in India and Afghanistan, later the French and Germans in Africa. In 1876, Victoria may have become 'Empress of India' in part out of pique at the crowning of a German Emperor. By the end of the century, 'the Empire' was a source of pride, but also of great anxiety, for example the threat of defeat at the hands of Boer guerillas. In 1902 Britain was obliged to agree joint Anglo-Japanese naval supremacy in the East, to see off the German and French naval threats. The Empire had become an encumbrance we could not afford to defend. Thus, our imperial decline began very early, as was felt imminent as early as 1900 (3).
4. What we did in Ireland was an atrocity
By 1800 Scotland and Wales were docile junior partners in 'Great Britain'. Ireland was another matter (4). A profoundly Catholic people had never made sense as part of a profoundly Protestant nation - always alien, always suspect, always repressed, rising with French help against the British Crown in the Revolutionary Wars. The Dublin Parliament was suppressed in 1801. Granted, the penal laws, which stopped Catholics even practising their religion and excluded them from society in many ways, were gradually relaxed from the late 18th century onwards, but always slowly, and against staunch opposition in Britain. 'Coercion Acts', a generic title for Acts to suppress basic liberties and rights in Ireland, were passed again and again throughout the century. Britain held Ireland by force.
Arguably the most important event in the domestic history of the United Kingdom in the 19th century was the Great Famine. The immediate cause was potato blight: but absentee landlords, rapid population growth, a history of Catholic landlessness, brutal mass evictions and and protectionism were all contributory factors. There was charitable help from England, and the whole world. But Government aid was inadequate: the official in charge, Charles Trevelyan, limited aid because it offended his belief in laissez faire: and because "the judgement of God sent the calamity to teach the Irish a lesson, that calamity must not be too much mitigated . . . the real evil with which we have to contend is not the physical evil of the Famine but the moral evil of ...the people ". In fact, there was no 'famine', strictly speaking: there was always surplus food in Ireland: and English absentee landlords continued to export it in huge amounts throughout the 'Famine' (4). Not 'famine' but human-contrived starvation (5).
A million men, women and children starved to death or died of disease induced by starvation. A million, in the richest country on Earth. Another million were forced to emigrate. England's very own Holomodor. Is it any surprise that the century ended with Irish terrorism, forerunner of bitter civil war in the next century, the terrorism of our own times, and the still unresolved issue of a partitioned Ireland?
5. Enterprise made Britain wealthy; State intervention made it civilised
Britain in the early 19th century would strike us now as essentially Third World, especially in the newly industrialized cities which just grew up higgledy piggledy around the new factories. Stinking open sewers and middens in the street, no safe water supply, the streets dark at night, no police, rampant theft and robbery. In 1858, the Thames stank so of untreated sewage that Parliament had to be hung with heavy curtains soaked in lime chloride. Workers were housed in over-crowded, shambolic, disease-ridden slums, and kept going on massive qualities of gin. Drinking shops and brothels abounded. Many children had no education, and worked incredibly long hours in dangerous factories and mines that killed or maimed them. Cholera, typhus and dysentery was rife. Life expectancy in the 1840s was very short indeed: in Manchester, just 28 years, in Liverpool, 27, less for the poor. Cannadine concludes that in industrialised towns, the 1840s were the worst for life expectancy since the Black Death!
By the end of the century Britain was recognisable as a civilised country. Much of that change was down to State intervention and regulation and public services. Factories Acts limited the hours children could work , made factories safer, and established an Inspectorate to check compliance. Education Acts ensured children got some education, at public expense, in publicly run schools. The Sale of Food and Drugs Act made food safer. Licensing Acts limited opening hours, protected the young, repressed public drunkenness (and prevented the adulteration of beer). The Artisan Dwellings Act enabled local authorities to clear slums and build safe public housing. The Municipal Corporations Act replaced corrupt and ramshackled local corporations of the 18th century and created the structure of proud, well funded local government that did so much for Victorian Britain: built proud Town Halls, libraries, schools and public housing, and supplied safe water, sewage. education, street lighting and police.
Studying the past often tells us more about ourselves, now, than about them, then.
I am struck now by how unthinking, unquestioning I was at 17. Despite the best education, I did not worry much about what 'Empire' actually meant. I was happy in the warm bath of British Providentialism – well not warm, by then tepid, but still not cold enough to force me to get out of – the idea that History with a capital H has a special destiny marked out for Britain and 'meant' Britain to rule large chunks of the world. I just thought of Imperialism as something we did, and thank God were better at than everyone else, and that by and large we did good. I was clever but stupid.
Now, of course, I see that attacking other peoples and occupying their country is wrong, and cannot be excused by doing some good along the way. Yet I am not one who thinks that by measuring the past against today's values, we can simply dismiss as 'wrong' the bits that do not measure up. For no epoch fully measures up to those values – including the present itself, needless to say. And what sense does it make to condemn, say, the civilisation of 5th century Greece because it was founded on slavery? Should Rome have stayed within its city boundaries and forsworn all conquests? What possible sense can history make if read in that way? And I admit to being further perplexed by the fact that my grandfather was a British official in imperial India, where he built the railways that made 'India' and ran them safely and sternly combatted endemic corruption. He was no Nazi, for me to be ashamed of. In short, I am less sure than ever what to make of our imperial past. That probably counts as progress.
I am also struck afresh by the delusion of modern British nostalgia. Our relative decline industrially and economically dates back a century and half. By 1940, we could not afford to fight the War, could not make half the equipment we needed, could not make at all some of the technology we invented, and so we relied utterly on American money, industry and technology. To see Boris Johnson wax lyrical about British know-how and Victorian entrepreneurialism and what a great trading nation we are and the spirit of 1940, 'we stand alone' etc is to stare unbelievingly at an idiot about to step off a cliff while loudly boasting how well he can fly. It is the sort of hubris that must be punished. Perhaps, in a sense, the British now 'need' the self knowledge of defeat that the French and Germans got in spades in WW2. But that would we be capable of using that knowledge? I suspect we will just hate foreigners even more.
The main lesson from this book is surely the one that I believe all history teaches us: the futility and wrong headedness of looking back to some imagined Golden Age as the model for what we should do now, today. There was no settled, unchanging Golden Age. The past, when it was being lived, was never secure, there was always uncertainty, anxiety: invasion scares in the 1800s, rural unrest and violence in the 1820, the threat of violent urban revolution in the 1840s, fear that extending the franchise would destabilise Britain, and later, violent resistance and terrorism in Ireland (and by the Irish in England), mass immigration from Eastern Europe, the Empire under threat from foreign powers, the threat to British naval supremacy from Germany, industrial unrest and radicalism at home.
The challenges of the present are different, to which the past cannot hold pre-prepared answers, and which can only be tackled by working out our own salvation afresh now, as best we can, based on what we value, how we think we should live, in short, what we would like our future history to be.
1. Wonderfully analysed in Corelli Barnett's coruscating 'Pride and fall' sequence
2. Today, 14, 000
3. Kipling's 'Recessional', published in 1897, captures that mood:
Far-called, our navies melt away;
On dune and headland sinks the fire:
Lo, all our pomp of yesterday
Is one with Nineveh and Tyre!
4. The language of statehood makes this clear. Ireland was not part of 'Great Britain' but of 'the United Kingdom', as is still the case with Northern Ireland.
5. It has been asserted that in the worst year of the Famine, Ireland exported about 4 million litres of butter to England: http://www.jrbooksonline.com/PDF_Books/irish.pdf
6. Shaw, 'Man and superman':
Malone: Me father died of starvation in Ireland in the black 47. Maybe you've heard of it.
Violet: The Famine?
Malone: No, the starvation. When a country is full of food, and exporting it, there can be no famine.
Last week's BBC 'File on 4' programme posed the question: 'Britain's squalid prisons: who's to blame?' [That should of course have read 'England and Wales'. It would indeed have been illuminating to include Scotland, where these services have not been outsourced.] The answer illustrated a perennial truth of outsourcing: that behind failure (or success) by outsourcers often lies failure (or success) by the customer.
Contracting for FM services is hardly rocket science. The UK has the most developed FM services market in the world. Many organisations, public and private, outsource FM – including the BBC and the Guardian – and it's not hard to see why. If your business , say, journalism, you have no expertise in running FM directly - and no wish to. A specialist firm is likely to be both cheaper and better than building your own in house service. Margins in the sector are extremely tight so you aren't paying a lot extra to buy it in.
Agreed, there are special circumstances in the peculiar world of prisons: as the programme pointed out, some problems need fixing right away, others (broken windows, showers) have different consequences in prisons than in the outside world. But such things can be written into contracts.
Both the Amey and Carillion contracts were disastrous since the start. 'File on 4' had meticulously trawled through reports by Independent Monitoring Boards (local people who provide an external presence in each prison) and found complaint after complaint. Among the worst cases was Liverpool prison. I read this passage in the Chief Inspector's report with incredulity, shame and anger:
I found a prisoner who had complex mental health needs being held in a cell that had no furniture other than a bed. The windows of both the cell and the toilet recess were broken, the light fitting in his toilet was broken with wires exposed, the lavatory was filthy and appeared to be blocked, his sink was leaking and the cell was dark and damp. Extraordinarily, this man had apparently been held in this condition for some weeks (1)
The Justice Committee rightly gave Michael Spurr a hard time on this report at their hearing on 24 January. It looked a career-shortening session.
Why did it all go so wrong? It's pretty clear:
the costs of maintenance and services were not clearly understood by the business and consequently planning assumptions have not held true. The contract is therefore underfunded and the declared efficiency savings reduced. Financial risk within the contract can be attributed to four main areas: asset verification, asset condition, service verification and variable costs. Actions have been taken within each area that are ongoing but to date have ensured clarity on financial risk and have allowed negotiated settlements to be reached that reflect true contractual costs. Appropriate governance has been put in place that now ensures that variable costs are accurately reported and justified and that claims are assured by the Contract Management team.
MoJ concluded that the mistakes it made in contracting
may impact on service provision and declared efficiency savings (2)
So, to be clear: MoJ knew, before Carillion collapsed, that its mistakes in contracting were likely causes of unacceptably poor service. That must, I think, raise the possibility that the contractors have some legal redress against MoJ in respect of incorrect information given in the contracting process.
I note also that both companies were subject to huge financial penalties for poor performance: in Carllion's case, £4m in 18 months. Interestingly, the fines against Carillion, levied month after month, stopped suddenly in June 2017. Was this the point at which MoJ realised its own miscalculations were the root cause of the contractors problems? Did MoJ then increase increase its payments to contractors, to make good the errors in contracting? Have the companies not some legal remedy, since the fines might arguably have been in some measure caused by MoJ's incompetence in contracting on an unsound basis?
There is a lot of murkiness about the figures. Remember, MoJ said the contracts would cost £80m a year, so against about £105m for the in house operation. But a recent PQ discloses that that is the price only for fixed costs and excluded indexation and 'variable works' (3). So we don't know what the all-up cost was expected to be - or actually is. Did MoJ simply forget about variable costs? MoJ now say the £115m cost reductions will be achieved. But will any cost reduction be achieved? If not, why not? Or are MoJ asserting that their previous in house team can beat the prices of any commercial FM operator?
Would slightly higher bids have worked? Well, as it happens, we have an example. Before these contracts were let, MoJ had let FM contracts for 2 London prisons to another company, MITIE. Those prices were between the rock bottom prices bid by Amey and Carillion, which have proved unsustainable, and MoJs own internal costs. And that contract is still operating reasonably well.
The programme highlighted the way the bureaucracy of the contract created problems. Previously, if the guys turned up to do some work in a cell and a nearby cell needed fixing too, they fixed that as well. Now, they must go away while the customer raises another order form, sends it to the contratcor's management and that then goes down to the guys again but by that time they are somewhere else.
What happens now? Since we now know, and MoJ has admitted, that the contract was underfunded, one must expect the cost of the service to increase. It will be interesting to see by how much. Would such an increase brings the price close to the bid by MITIE, which we now know was deliverable, but rejected in favour of too cheap bids?
'File of 4' raised one other matter, which is an impact on staff, not prisoners. Two long serving works staff at Liverpool prison, transferred to Amey when the contract started, spotted that Amey's 'efficiency' of requiring staff members to do work in a cell alone, rather than in twos, created a potential security risk through theft of tools while staff were up ladders etc – and that for 'tools', read 'weapons'. They went to see the Governor, who had previously been their Governor, to raise the issue. Amey then sacked them for 'bringing the company into disrepute'. You couldn't really make it up, could you? But the men surely have a cast iron defence. I mean, how could anyone bring Amey more into disrepute than it already is?
There is much about this scandal that is still concealed from the public, and from Parliament:
What is so disturbing about this scandal is that these should have been about the most straightforward contracts you could think of. Hundreds of FM contracts are let every year. Yet MoJ found them too difficult. Same with the tagging contracts, which MoJ had been letting for 20 years without trouble, but which fell apart a few years ago in a series of botched procurements that have cost the tax payer millions (4). Same with the contracts for rehabilitation of short term prisoners, which in the opinion of the auditors, were so bad they might as well never have been let – and which did not require the contractor to achieve anything in the real world, but merely to produce bits of paper (5). Not to mention the (much more ambitious) botched probation contracts which have almost destroyed a service which MoJ itself reported was functioning well in 2010, and so placed the public at additional risk (6). Or the audit of MoJ procurement published as far back as which revealed a Department with massive, systemic weaknesses in every aspect of procurement (7).
MoJ have been 'learning lessons' of successive procurement disasters and promising to improve performance for too many years now. And not just procurement – prisons, probation, courts, sentencing policy, wherever you look, MoJ is failing. It is in fact a failed Department, like a failed school, or failed hospital, or even a failed prison. Thing is, when a school or hospital fails, Whitehall removes the top management and takes it over. But when Whitehall fails, as MoJ so clearly has, who takes that over?
In a move which has delighted penal reformers, faced with a prison system in crisis – inhumane overcrowding, rising violence and self harm, union unrest – the Government has at long last decided to implement an ambitious and radical strategy for prison reform to address the fundamental problems of the prison system, defying criticisms from the Right-wing press that it is 'soft on crime'.
The programme comprises:
These reforms were announced by the new Minister of Justice in recent weeks.
This article is about France. Come on, whatever did you think?
"The government knew of a plan that could have retrieved more than £360m from Carillion.....but the Cabinet Office, responsible for oversight of government contractors, did not apply any pressure on Carillion’s directors to adopt the proposals" (Guardian, today).
Don't you just love that word: 'oversight'?
A rare balanced and informed article in the FT today on private prisons:
It ends with a comment which for me, sums up exactly where we are, as incompetence on the part of operators and customers alike, plus of course Corbynism, seems to spell the end for outsourcing:
"we’ll spend the next 20 years relearning the downside of self-serving union-dominated public service monopolies.”
That isn't the whole story of course, for there are sectors, like the armed forces, where not even the fanatics of the Right think competition can be applied (although having said that, I fear Rees Mogg may at this very moment be planning a return to medieval mercenary armies). And one of the many delightful internal contradictions on this issue is that the further Right you are, the more wonderful you think those public service monopolies are.
And the fundamental issue is surely not public v private, but this - in cash strapped times (and everyone except John McDonnell knows money is scarce and will remain so indefinitely), how do you run public services of consistent quality, how do you adjust the service to realistic levels given tight funding, how do you manage public expectations, what do you prioritise and what do you not prioritise, how do you give proper accountability and transparency? That it seems to me is the debate we are so determinedly not having, while the Tories deny that funding cuts have caused unacceptable service, and Labour maintain there is money enough to meet every demand.
Note: I am re-posting here with permission this article by Penelope Gibbs, Director of Transform Justice, because I have not seen this point made about evidence of the potential injustice of video hearings, especially (but not only) when imposed compulsorily; and the point is all the more important at a time when MoJ is aiming a huge expansion in hearings by video links to save money on court productions. So it seems important that the point is properly considered, and by her account it is being ignored . The original is at:
"The absence of the applicant in the court automatically depersonalises him/her. His/her feelings and emotions are contained within the detention centre, hence not being felt on a more personal level at the court. Consequently, the applicant becomes a mere ‘detainee’ in the video. This disadvantage is compounded in cases where applicants required interpreters. In some instances, due to reasons such as the incompetency of the interpreter or limited time given to interpret court discussions, the hearing of the case seemed to only be happening among the parties present in the court” (Cardiff University Law School Bail Observation Project 2015-16).
The justice system is fractured, but access to justice and effective participation are important in all jurisdictions. So its good and bad that video hearings seem to be having just as negative effects in immigration bail hearings as in criminal hearings – good because it strengthens the evidence base, but bad because it indicates systemic problems.
Those detained in immigration detention centres like Campsfield and Yarlswood usually apply for bail so they can lead a (semi) normal life while waiting for their next court hearing. Nowadays nearly all those applying for bail do not get transported to the tribunal in secure vans, but appear via video link into the court room. Everyone else involved – judges, lawyers, interpreter, public observers etc are in the court room.
The detainees get no choice as to whether they appear on video or not, and there is no provision for those with physical or mental health problems to be assessed so that reasonable adjustments can be made. And the problems involved are similar to those experienced by defendants and prisoners.
“In video link hearings, the legal representative gets only 10 minutes to talk to the applicant at 10 a.m. or at 2 p.m. before the listed hearings start. By contrast, the representative of an ‘in-person ’applicant can talk to them at any time in the cells for as long as they need. This is not equal treatment. Video link may be effective when the judge enables the applicant to participate actively in the process, when interpreting is not needed and when the machinery functions efficiently. But it is not usual for the judge to act in this way, and on far too many occasions the technology was defective, with poor lighting, noisy feedback, sound distortion and mechanical breakdown. Our major criticism of the video link process, however, concerns the impact on applicants. They are at a distance from the court, and all those in it. Unless they are directly engaged by the judge they may have no opportunity to speak, and unless the judge ensures that there is full interpreting for those who need it, they may miss much of the substance of the hearing. It could be argued that video link does not constitute a hearing in the judicial sense, unless it can be demonstrated that there is no detrimental effect for the applicant” (Still a Travesty: Justice in Bail Immigration Hearings 2013)
These problems mirror those Transform Justice found in its research on video hearings from prison to court and from police station to court.
This would matter less if outcomes of hearings were the same whether or not people appear on video. But there is evidence that outcomes are very different. A study done by the Ministry of Justice in 2010 showed that defendants who appeared on video from the police station were more likely to be imprisoned than those who appeared in the physical courtroom (this was either the direct effect of appearing on video or the indirect effect of more defendants on video being unrepresented). And research done on immigration video hearings in England and Wales backs this up. A fantastic group of volunteers observed bail immigration hearings in 2012 and found that the success rate of bail applications was 21 of 41 when the detainee appeared in person (51%), and 54 of 170 (32%) when by video link. As with video links for criminal hearings, there is no official data for video immigration bail hearings so we do not have access to bigger numbers.
But there is corroboration from across the pond. Professor Ingrid Eagly studied the effect of putting immigration detainees on video in USA for court hearings and found that those who appeared on video were more likely to be deported than those who appeared in person. This wasn’t however because the judges appeared biased against them, but because the detainees on video were more likely to disengage from the process – “less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure”.
Its clear from all the research that has been done that video hearings can have a negative effect on outcomes. The pity is that no government research from England and Wales is recent, the best bit of government research is seemingly ignored, and other research is on small numbers.
However anecdotal evidence is important and even the current Lord Chief Justice has experienced how the behaviour of defendants changes when faced by cameras. At his annual press conference Lord Burnett was asked about the filming of sentencing hearings and said he was “afraid some people behave differently - not judges - but some people behave differently in court if they know that something is being recorded”.
If the Lord Chief Justice is convinced the behaviour of someone in court changes simply because there is a video camera there, he undoubtedly also countenances that appearing on video whilst completely isolated from the courtroom may significantly affect the behaviour of defendants/detainees?
Meanwhile HMCTS, which has three senior judges on its board, is piloting a fully virtual immigration court which will have no one in the court room at all.
I was formerly Finance Director of the Prison Service and then Director of the National Offender Management Service responsible for competition. I also worked in the NHS and an IT company. I later worked for two outsourcing companies.
Click below to receive regular updates