Probation and the Bill: reforming or wrecking?

As the Offender Management Bill makes its unsteady way through parliament, it has been the subject of an extraordinary amount of criticism, and a shower of government amendments have been rapidly drafted in an attempt to shore up support. Most of these have been about the Probation Service, which is not the largest service affected by the Bill; the prison system costs almost three times as much as the Probation Service. So why are almost all the arguments about probation?

This question takes us to the heart of the Bill’s attempt to redefine the role of public services in the criminal justice system, and any attempt to answer it requires consideration of at least three main questions.

Firstly, what is the Bill attempting to achieve through its reforms of probation? Secondly, are the measures proposed in the Bill likely to deliver? And thirdly, and most fundamentally, have the proponents of the Bill properly understood the nature, strengths and problems of the service which they propose to subject to changes so profound that they are widely regarded as amounting to abolition?

The Bill traces its main proposals back to Patrick Carter’s Correctional Services Review, carried out for the Prime Minister’s Strategy Unit in 2003 and published under the title ‘Managing Offenders: Reducing Crime’.

This report, produced in the modern style by inviting a businessman to design quick reforms for the public sector, received almost immediate government support after minimal consultation. This extraordinarily rapid transition from ‘blue skies’ thinking to policy left civil servants scratching their heads over the practicalities of implementation, and they are scratching still.

Carter made a number of important proposals: the best of them (to peg the prison population at 80,000 and to introduce proper resettlement services for short-term prisoners) have been quietly forgotten or postponed.

Instead, most of the development effort has gone into the establishment of a National Offender Management Service (NOMS), and into the imposition of ‘contestability’ against the concerted opposition of the probation employers (the Probation Boards) and their staff.

NOMS, originally conceived largely as a means of ensuring a co-ordinated approach by prisons, probation and other agencies to the management of offenders, has become a bureaucracy of over 1,500 staff in which many of the senior posts are no longer held by criminal justice professionals, and from which the post of National Offender Manager (proposed by Carter) has been removed.

‘Contestability’ was based on the experience of using the private sector to build and run prisons, which is widely (but not universally) credited with pushing up prison standards. The same panacea was prescribed for the Probation Service without much clarity about how it was going to work, except that regional commissioners were to oversee competitions to provide probation services, in which the Probation Service itself would be pitted against other organisations from the public and voluntary sectors.

Ministers appear to have been converted to the view that markets and the private sector offer a short cut to effectiveness; the staff tend to see contestability as privatisation, and worry that it will lead to insecurity, fragmentation, higher costs, less consistency of service and less safety.

Any regular user of the privatised railways will understand such fears, but are they realistic in the context of the Probation Service?

To begin to answer this question we need to look at where the Service has come from, what it has been trying to achieve, and the problems already created by other recent attempts to reform it. The precursors of the modern probation service were 19th-century faith-based voluntary organisations which developed charitable and missionary outreach work in the police courts and prisons, but the reason why the Service is celebrating its centenary this year is the Probation of Offenders Act 1907 which first put it on a firm statutory basis.

During the second half of the last century it became established as an essential component in the criminal justice system; locally organised and accountable to local courts, it provided an increasingly professional pre-sentence reporting service and it supervised those offenders who were seen by magistrates and judges as more in need of guidance than punishment.

Probation historically was not seen as ‘punishment in the community’. Instead, its purpose was to rehabilitate the offender and to reintegrate him or her into a pro-social way of life. The probation order was an agreement or contract between the court, the offender and the supervising officer, in which the court suspended its power to punish in return for an undertaking from the offender to avoid crime and an undertaking from the probation officer to help him or her to do this, and to return the case to court for further consideration if the offender did not stick to the agreement.

The German criminologist Max Grünhut, who introduced criminology to Oxford, put it very well: probation’s strength, he argued in the Howard Journal, ‘is due to a combination of two things, conditional suspension of punishment, and personal care and supervision by a court welfare officer’ (Grünhut: ‘Probation in Germany’, 1952).

In this view, probation is not simply a punishment but a qualitatively different kind of penalty specifically designed to motivate offenders to change. Other more recent developments, such as the introduction of community service in the 1970s, emphasized reparation rather than punishment.

In the 1990s, three main developments changed all this. The 1991 Criminal Justice Act turned probation into a punishment, in the possibly vain hope that this rather minor punishment would displace more obviously punitive options such as imprisonment.

At the same time, the Probation Service itself discovered and began to use the international ‘What Works’ research which pointed to methods of supervision and training which could reduce the tendency to re-offend — arguably a more constructive approach for all concerned than simply increasing the severity of punishment.

This work, however, had to be developed in the context of the third major change, which was the politicisation of criminal justice policy and the emergence of a ‘toughness’ competition between the major political parties. The result was an attempt to remodel the Probation Service through centrally driven ‘reform’, targets and audits.

A National Probation Directorate was set up in 2001, disempowering all the old local arrangements and driving forward a number of ‘What Works’ programmes: these had genuine merits and promise, but most experts believe that they should have been implemented more cautiously and with fuller evaluation.

Much of their potential value was lost by a combination of hasty implementation and unrealistic targets which forced probation areas to top up programme numbers with unsuitable offenders. In addition, the self-defeating rigorous enforcement policies demanded by politicians meant that few offenders completed their programmes.

Too little attention was paid to the individual supervision of offenders, and the minds of capable middle managers were focused on making reorganisation work instead of on overseeing the nuts and bolts of offender management.

Some highly publicised scandals followed. According to the probation officers’ union, increases in funding financed bureaucracy and cumbersome computer systems rather than improvements in services. Top-heavy managerialism has never been the best strategy for motivating professional staff. This was the context into which Patrick Carter launched his report, and in which the various versions of the Offender Management Bill were drafted.

Critics of the Bill point out that its unprecedented concentration of power in the hands of the Home Secretary (or, since May 9, presumably his equivalent in the new ‘Ministry of Justice’) works against local involvement and accountability. They argue that the public interest in effective and accountable probation services is better expressed through the existing Probation Boards, which should be responsible for commissioning work locally rather than being simply one of the parties competing to provide it.

An approach based on partnership with voluntary and private sector organisations could provide more consistency and less fragmentation of offender management than a system in which all these bodies and the Probation Service itself are in competition with each other.

Probation Boards are part of the administration of justice, and to make them compete for their own business makes no more sense than to expect the judiciary to tender competitively for the business of conducting trials.

The government’s recent attempt to define ‘core offender management business’ (such as providing reports to courts) which will be (temporarily) protected from ‘contestability’ goes some way to recognising this, but arguably not far enough. Other possible amendments, which seek to define core probation business in terms of rehabilitative offender management rather than punishment, touch on the more fundamental issues.

No well-informed person could argue that the current Probation Service is free from problems. However, these problems have been at least partly caused by over-centralisation, by over-rapid and poorly thought out ‘reform’, and by hyperactive over-legislation by politicians who sometimes do not appear to have a fully grounded understanding of what the service does.

It seems unlikely that the solutions are to be found in more of the same. In addition, many probation staff appear to have lost confidence in ministers who subject them to public criticism in an attempt to justify the proposed changes. Perhaps the transfer of responsibility for probation to the new Ministry of Justice will offer an opportunity for some urgent rethinking.

Peter Raynor is Professor of Criminology and Criminal Justice at Swansea University. A former probation officer, his recent books include Rehabilitation, Crime and Justice (Palgrave) and Race and Probation (Willan). He is a member of the Correctional Services Accreditation Panel and the NOMS Stakeholder Forum.