Carter But Smarter: Transforming offender management, reducing reoffending by Policy Exchange

research note November 2010

November 2010

Carter But Smarter Transforming offender management, reducing reoffending Max Chambers

Executive Summary The creation of the National Offender Management Service (NOMS) was the single biggest structural reform of the criminal justice system of the last decade. By bringing the prisons and probation systems under the control of one single organisation, the primary aim was to encourage better join‐up between the two systems in order to reduce stubbornly high reoffending rates. In addition to facilitating ‘end‐to‐ end offender management’, NOMS was also charged with driving a pro‐competition agenda, in order to recognise significant efficiencies and foster innovation in service delivery. This was to be directed by a regional commissioning structure, to provide a purchaser/provider split. Many of the aims of the Carter Review (which led to the creation of NOMS) were sensible – designed to address the failings of a system in which programmes and interventions received in prison were often not followed‐up in the community, and in which far too often different contributions were made independently of one another, duplicating effort, or even resulting in contradiction. All of this meant that, in Carter’s own words, there was “no clear ownership on the front line for reducing re‐offending.” The record of NOMS This report examines the extent to which the original aims of NOMS have been achieved in relation to reducing reoffending by embedding end‐to‐end offender management and creating a market in delivering interventions. It finds that the aims of NOMS have not been achieved to any meaningful degree. End‐to‐end offender management: The key aspect of delivering seamless offender management was to give a probation officer the role of ‘offender manager’ for prisoners who might be located hundreds of miles away and who might not be in the community for years. The concept was never realistic and in the end, was quietly abandoned. Moreover, in trying to fix a problem of a silo mentality between prisons and probation, civil servants in Whitehall had merely created new silos. The top‐down implementation of the NOMS model, which made clear distinctions between ‘manage’, ‘supervise’ and ‘administration’, meant that probation and prisons staff were obliged to divide into new silos (not to mention another subset for those staff who had to deliver the interventions). What this means is that six years after

Carter, the contention that there was “no clear ownership on the front line for reducing reoffending” appears to still hold true. Competition: NOMS has also failed to develop a market in offender management. In fact, there has actually been less competition by value in the last five years than there was in the five years before the Carter Review. This is partly due to the standstill in prison building under the previous government (if ministers had built adequate prison capacity, it would most likely have been done under PFI arrangements). However, it is mostly because ministers in the previous government consistently marched NOMS officials, prison staff and probation officers, up the hill and then back down again in the face of threats and opposition from vested interests. Our discussions with officials have highlighted not only how distracting this was for them, but also their concern at the alienation felt by private and voluntary sector providers who had spent a lot of time and more than a little money in attempts to enter the market. Reoffending: At first glance, it would appear that reoffending has reduced significantly. Between 2003 and 2006, the actual rate of reoffending fell faster than the predicted rate would have indicated (and actual reoffending has only risen subsequently in proportion to the rise in the predicted rate). At the same time, the frequency at which offenders have reoffended has also fallen, with reoffenders committing fewer offences in the year following the end of their sentence than in previous years. This would also indicate success in reducing reoffending. However, ‘reoffending’ levels are measured according to whether an offender has been reconvicted of a criminal offence. The latest reoffending statistics confirm that out‐of‐court disposals (i.e. cautions or warnings) are not counted.1 This means that reconviction statistics are very vulnerable to changes in police practices, i.e. what the police decide to do with an offender once he/she has been caught. Over the last decade, there has been a big increase in the proportion of offences dealt with by a caution outside of a court setting. We have therefore examined the relationship between the trends in reoffending rates (both the frequency of reoffending and simply the measure of whether or not an individual has reoffended) and the caution rate (i.e. the proportion of all offences for which a caution is given) since 2000 (the baseline used by the government to compare progress made).

See Appendix C of Reoffending of Adults: Results from the 2008 cohort, Ministry of Justice

Reconviction rate vs. caution rate

50 45 40

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Variation in reconviction frequency rate and caution rate against 2000 baseline

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While the caution rate will not explain every single part of the reduction in reconviction rates, the clear relationship between the two is unmistakable. It puts into sharp context any assumption, claim or hope that the introduction of the NOMS model to bring prisons and probation closer together has reduced reoffending. Reconviction rates may have fallen simply because decisions on whether to convict have changed. The remarkable correlation between the caution rate and the measures of reconviction (both severity and the percentage of offenders who are reconvicted) should also call into question both the Ministry of Justice’s claims to have reduced reoffending and, more importantly, the measure of reoffending itself. Why NOMS failed •

Superficial analysis: A large portion of the blame for the failure of NOMS must go to the Carter Review itself. Its analysis – particularly in relation to the concept of ‘end‐to‐end offender management’ – was largely superficial and far too broad‐brush for the kind of massive reorganisation at national and local level that followed.

•

Top‐down implementation: Despite the lack of detail in the Carter Review, the acceptance of its prescriptions in full has led to a drive to impose them from the centre, without adequate regard for the practicalities on the ground. Huge efforts were made to fit service integration around the doctrine of end‐to‐end offender management, but it has clearly not worked.

•

Constant reorganisation: The incredible amount of reorganisations within NOMS has sapped the morale of civil servants and front‐line workers, making all of the above problems much more difficult to rectify.

•

Lack of political will: Even in spite of the failures on service integration, the system could be much more competitive, cheaper and more effective today if ministers in the previous government had meant what they said about engineering a competitive environment. However, six years on, the lack of political will has meant that none of the aims of Carter have been achieved to any meaningful degree.

The need for a wider focus Although Carter clearly identified some of the failings of the old system of prisons and probation, there was a fundamental flaw in the analysis which led to the creation of NOMS. Extensive discussions with experts and local practitioners have reinforced the view that for the last four or five years, NOMS has been trying to force a model on local areas that misses a crucial part of the picture: more than half of the services to reduce reoffending fall outside of the remit of NOMS ‐ and indeed the criminal justice system as a whole. Reducing reoffending means addressing issues such as accommodation; health and social care; finance, benefit and debt; education, training and employment; children and families; attitude, thinking and behaviour; drugs and alcohol rehabilitation. The role of NOMS and employees within the prisons and probation services locally is largely limited to one of persuasion; cajoling, influencing and attempting to engage other departments and local agencies in the reducing reoffending agenda. But there is no real policy lever to compel this collaboration. This is compounded by the fact that there is very little or no incentive for other government departments, or the local agencies underneath them, to pool resources, expertise or knowledge to help reduce reoffending. In this sense, the Carter Review represented an enormous missed opportunity to develop a cross‐departmental strategy, with a local and national element, and to get all parts of the system aligned and working in tandem. In the last two years, there has been greater recognition of the need for the government to focus more widely than on prisons and probation ‐ by implication, a rejection of Carter’s narrow original vision. A number of new models for delivering offender management have developed recently which give greater regard to the role of non‐criminal justice actors for reducing reoffending. Government policy is now focusing more on embedding ‘integrated offender management’ or IOM, which involves local agencies in a shared agenda to reduce reoffending. In addition, new models of financially incentivising non‐ criminal justice actors to reduce reoffending (on a payment by results basis) are being developed by the Ministry of Justice in accordance with the coalition agreement. However, IOM has not yet delivered ‘true’ integration. In theory, services are becoming more integrated, but in reality key partners have been extremely difficult to engage. It is a common refrain of those involved with integrated offender management that there has been little or no practical engagement or join‐up with local jobcentres, housing providers or Primary Care Trusts.

The biggest signal that true integration has not been achieved is that there has been extremely little pooling of budgets to support IOM. Pooled budgets are absolutely fundamental to achieving buy‐in and cooperation from those agencies whose expertise and engagement is so badly needed. Without pooled funding and the consequent cooperation, there is no service reconfiguration, no transformation in delivery and no step‐change in outcomes. Payment‐by‐results approaches are at a very early stage. However, so far the Coalition government has focused exclusively on paying private and voluntary providers by results. This is potentially transformative but reform of the public sector must be wrapped in too. Superimposing a payment mechanism over the top of existing, fragmented structures will not actually fix the fragmentation, but merely disguise it – and possibly drive up costs rather than reduce them. A true solution to reducing reoffending will seek to actually fix the fragmentation and reform the public sector as well, building on the expertise that is already there. Likewise, the reality is that the services required by offenders are currently largely provided by the state. Public sector provision ‐ such as housing, job training, education and skills, addiction treatment, mental healthcare and social services – will still exist. Offenders will still be entitled to public services and the budgets of those public services will not decrease simply because reducing reoffending is now someone else’s responsibility. Of course, private and voluntary bodies can help offenders access existing public services, but merely incentivising the private and voluntary sector will not affect public sector incentives or service configuration. The truth is that both integrated offender management developments and proposals for payment by results are two promising sides of the reoffending coin but, so far, no attempt has been made to fuse the best aspects of the two approaches. The way ahead This report’s fundamental criticism of NOMS is that reform has been too prescriptive and centrally‐ directed – prioritising process ahead of incentives and blunting the ingenuity and enthusiasm of the public, private and voluntary sectors. It has also ignored the fact that services outside of the criminal justice system need to be key partners in reducing reoffending. Recent developments to better integrate services and introduce new payment mechanisms for success look promising but are, in their current form, likely to fall short – and new thinking is needed to transform the way the rehabilitation and resettlement needs of offenders are prioritised, structured and delivered. This report makes some firm recommendations about the immediate direction of government policy – including the mixing of the best aspects of integrated services and financial incentivisation. It also puts forward some ideas about what these changes might bring about for the future, in an era in which

demands on the criminal justice system are rising, the public spending environment is austere and existing levels of service need to be transformed in order to deliver more for less. These ideas will be developed in a further report by Policy Exchange, to be published in 2011. Recommendations: The Ministry of Justice should abolish the regional structure of NOMS and encourage local commissioning structures: the location of the commissioning function for reducing reoffending needs to be much more local. This is where cooperation with non‐criminal justice agencies can best be achieved. For this reason, it is recommended that the regional structure of NOMS, which costs around £30 million a year, is abolished. Money will certainly be saved, although it might be decided that some form of slimmed‐down regional line management should remain. In the longer term, options for the location of commissioning include local authority level, probation trust and the soon‐to‐be‐elected Police and Crime Commissioners. The Ministry of Justice should experiment with approaches to devolving the budgets for custody, community and other funding streams to a more local level. One way to incentivise agencies to contribute to the reducing reoffending agenda would be to devolve ‘shadow budgets’. These would be indicative and would allow local agencies to reap the rewards of fewer community and prison sentences. Experiments with shadow budgets should only be the first step towards exploring the devolution of real budgets. This would drive service reconfiguration. For instance, if a local commissioner held the budgets for custody, community and other agencies were also contributing portions of their budgets to reducing reoffending, this might result in the creation of one‐stop‐shops, with services to aid rehabilitation located at the court (as with the community courts in the United States and the North Liverpool Community Justice Centre). The Ministry of Justice should design mechanisms which offer direct financial incentives for the reduction of reoffending. In addition to introducing indirect financial incentives for reducing reoffending through budget devolution, there may be scope for complementing this lever with a direct incentive. One model might be to pay independent and voluntary sector providers by results in reducing reoffending. However, as outlined above, this report contends that ideally the focus of reforms should be wider than just the private and voluntary sector. Another option could be a ‘gain‐share’ model. This would involve the public sector being able to share in the benefits of reduced reoffending and criminal justice costs with the Ministry of Justice. For example, the Department could identify likely future prison savings and pay a shared bonus to agencies which contributed resources and personnel to a specified reoffending outcome. This might involve

partners from the local level coming together and making the Ministry of Justice an offer based on what might be achievable in a locality: if reoffending is reduced by x% over a certain time period, saving £x, the savings could be shared between the Department and the other parties. There is another possible model. With the right financial incentives, the fusing of the best parts of the concepts of integrated offender management and payment by results might be possible. Financial incentives to reduce reoffending could be introduced by the Department and a mix of public sector professionals could come together with private providers, the voluntary sector and social enterprises to form a public‐private partnership, or a ‘Reducing Reoffending Mutual’. Public sector workers – social workers, mental health workers, police, probation and addiction specialists ‐ with expertise in reducing reoffending ‐ could unite from across the range of services, while the private and voluntary sector could bring their own expertise to bear. This approach could inspire the most innovative approaches. These mutuals or cooperatives could provide ‘wraparound’ services for their clients, provided over many years, with financial rewards if and when certain key milestones have been achieved. The government must reform the reoffending measure and facilitate robust audits of multi‐agency spending on offenders. The Ministry of Justice should examine the relationship this report has found between the reconviction rate and the caution rate. There is a strong argument that cautions should be included in the measure of reoffending so that the impact of police practices can be properly accounted for. The reforms mooted above all hinge upon there being a reliable measure of recidivism. Without this, the reducing reoffending agenda may be dangerously susceptible to changes in police practice, which would distort outcomes and mean that the goal ‐ of reduced crime and reduced costs ‐ will ultimately fail to be realised. All of the above ideas depend on good data: without a good knowledge of how money is currently spent, it will be impossible to persuade other local agencies to pool budgets and cooperate. Unless spending is mapped, inefficiency and duplication cannot be identified. Until cost‐benefit analysis takes place, the most promising approaches to reducing reoffending and its associated costs will not be identified and learned from. In terms of the commercial opportunity for reducing reoffending, one of the key roles for the private sector might be to provide these audits (perhaps on a pro bono basis) at a local level – making the case to local agencies and the Ministry of Justice that there are better ways to spend their money. This might well provide some of the impetus that the government’s promised ‘rehabilitation revolution’ requires.

Carter’s Vision Offender management before Carter Until the Morrison Committee of 1962, the probation service had no active relationship with prisons at all, and the aftercare work of prisoners was delivered by the Discharged Prisoner’s Aid Society. Although the growth of welfare work in prisons post‐1962, aftercare services in the 1960s and statutory licence services (such as parole) increased the points at which probation interacted with prisons, both retained very separate identities, cultures and histories. Indeed, in the 1980s, the probation trade union NAPO (National Association of Probation Officers) actively campaigned against probation officers working inside prisons at all, regarding the stigma of ‘dehumanising’ prison institutions as anathema to probation officers’ core aims and goals. Not only was there a palpable disconnect between prisons and probation, but the two organisations themselves were also very differently constituted. On the one hand, ever since its inception, Her Majesty’s Prison Service was a national organisation with a very centralised ‘command and control’ organisational structure. The system of probation, on the other hand, had grown up organically and locally, beginning with a group of faith‐based organisations in the late nineteenth century.2 Prior to 2000, 54 ‘probation areas’ were in operation, with a degree of autonomy from central government. Without a national framework or coordinating body, probation areas were largely free to distribute the resources allocated to them by central government as they saw fit, and areas were accountable only to a probation committee made up of local magistrates. The then government published a green paper in 1998, which proposed sweeping reforms to probation. The organisation was criticised for being “fragmented” and having “limited accountability to central government”.3 The paper concluded that probation required much stronger national leadership and clear, direct accountability to the government and Parliament. The subsequent Criminal Justice and Court Services Act 2000 established the National Probation Service for England and Wales, based on 42 local Probation Boards, which were coterminous with police force areas and local criminal justice boards, and composed of representatives of the local communities and courts. According to the green paper which led to the reforms, the centralised nature of the Prison Service was intended to become more of a reference point for the work of probation. Merger of the two organisations was eschewed by policymakers as a bridge too far, but the gradual working in tandem of

2 3

Koichi Hamai and others, Probation round the world: A comparative study, 1995 Joining forces to protect the public, Home Office, August 1998

the two organisations was clearly the desired direction of travel. It was left to Patrick Carter,4 an entrepreneur, to design the template for the future. The Carter Review The decision to create the National Offender Management Service (NOMS) resulted from the 2003 Carter Review.5 Patrick Carter’s review of correctional services concluded that there were “significant structural problems” in the way in which probation and the prison service worked together. His main criticism was that the system was “dominated by the two services”, both of which behaved as “silos”, meaning that the services remained largely detached from one another. Carter claimed that “a more strategic approach to the end‐to‐end management of offenders across their sentence” was needed. Carter argued that programmes and interventions received in prison were often not followed‐up in the community, a problem compounded by the absence of a national resettlement strategy. Far too often different contributions were made independently of one another, duplicating effort, or even resulting in contradiction. The Carter report also highlighted the fact that information sharing on offenders between the two services was often poor, causing further fragmentation. Prison and probation operated different systems with different ways of capturing data, and the organisational boundaries also raised legal issues (particularly data protection concerns). These problems cumulatively meant that “no single organisation is ultimately responsible for the offender. This means that there is no clear ownership on the front line for reducing re‐offending.”6 The Carter vision for NOMS was to enable those working in the system to take a ‘system‐wide’ approach; to understand each individual contribution in its relationship with that of others, and that those contributions are designed to be complementary to one another. The correctional services of England and Wales had never yet designed and delivered these complex offender pathways as coherent single experiences for the offender. The vision would see the existing organizations absorbed within a new service to ensure a system focused on end‐to‐end management of offenders with a clear responsibility for reducing reoffending.

Patrick Carter, Lord Carter of Coles, is a Labour Peer who in addition to a career in business has advised the government on a wide range of issues. He has chaired a number of government reviews including Commonwealth Games 2002, The English National Stadium (Wembley), National Athletics, Payroll Services, Criminal Records Bureau, Offender Management, Public Diplomacy, the Procurement of Legal Aid and Pathology. 5 Managing Offenders, Reducing Crime, Strategy Unit, December 2003 6 Ibid.

This new approach would have three key elements, all of which were intended to make the best use of scarce resources: 1.

“End to end management of offenders” through a new National Offender Management Service to manage the Prison and Probation Services;

Greater use of competition from private and voluntary providers; and

A purchaser/provider split with Regional Offender Managers (ROMs) contracting rather than managing services on an equal basis from the public, private and voluntary sectors.

The government accepted the recommendations of the Carter Review in its green paper, ‘Reducing Crime – Changing Lives’, and the National Offender Management Service was duly created in June 2004. The key objective of the green paper was to reduce reoffending. 1. End‐to‐end offender management One of the key rationales for absorbing the existing organisations into one single service was in order to provide a more strategic approach to the end‐to‐end management of offenders across their sentence. However, there was no detail as to what this would mean in practice. Despite the government’s acceptance of Carter’s proposals in its green paper, it was left instead to officials within the Home Office to try to define what exactly Carter might have meant by ‘end‐to‐end offender management’. Following the government’s acceptance of Carter’s report, the next six months were focused on the organizational and structural implications of the new approach. It was only in June 2004 that the Minister of State for Prisons and Probation stated that attention would shift to “introducing the concept and practice of offender management”. The NOMS offender management model was duly set out in a document by the Home Office in 2006. It too observed that Carter’s review had concentrated on the organizational structures for delivering this new approach of offender management, but that “beyond its broad observations and recommendations, there was little detail about exactly how an offender’s experience at the front‐end would be different, and who would do what differently to deliver it.” The document also made clear that NOMS’ concept of offender management would “require defining in rather more detail than either the Carter report or ‘Reducing Crime – Changing Lives’ had so far done, if it was to be turned universally into practice”.7 ‘Offender management’, NOMS decided, can be defined on three levels. It is used at a high level to refer to the network of interlocking structures and processes by which the whole population of offenders will be managed through custody and into and within the community, and involves regional commissioning of provision and a mixed market of providers. Secondly, it is the approach to be used in managing particular offenders. A single Offender Manager will ‘manage’ an offender from one end to the other of their contact with prison and/or probation (expressed as ‘end‐to‐end management’), both organizations

The NOMS Offender Management Model, National Offender Management Service, May 2006

being structurally encompassed at national level within a new National Offender Management Service. Thirdly, the model "defines in more detail ... what it is that Offender Managers do in order to "manage" offenders".8 At the second and third level, offender management is, according to NOMS, a relatively simple concept. It aims to move away from a fragmented model of case management where ownership transfers in and out of custody with the offender and from one offender manager to another dependent on the sentence type. Instead, ‘end‐to‐end’ offender management was intended to better match the evidence base and to provide continuity and an integrated, ‘seamless’ service. As NOMS outlined, the fragmented nature of the existing model was “deeply embedded in the language, processes and procedures, structure, infrastructure and culture of the two key providers”.9 According to NOMS, examples of this included: •

the fact that assessment and sentence plans transferred from one organisation to another as an offender moved in and out of custody;

•

the notion that there are two fundamentally different kinds of sentence – community and custodial – was captured in the language and behaviour of the main providers; and

•

the fact that most probation areas organised offender management around sentence types, so that the core relationship with an offender changes as he/she moves from pre‐sentence stage to post‐sentence, and from sentence to sentence. Personal Officer schemes in prisons aim to establish a personal relationship between a prisoner and a member of staff, but these relationships rarely transcended moves within establishments, let alone between them.10

In seeking to act as the bridge between Carter’s broad brush policy recommendations and the finer detail of practice, NOMS drew on evidence from academic research to flesh out a model. NOMS officials in Whitehall focused on the ‘What Works’ evidence, case management models and structures and other research into the effectiveness of correctional work. Once the theoretical model was developed, NOMS also set up a Pathfinder Project in the North West of England in 2004 to test its application in the real world, with input from prison and probation staff. In many respects, the case management model that was articulated was not particularly different from what had long been in the pipeline; the model was in development well before the Carter Review and was initially designed to work across the two separate services.11

Ibid. Ibid. 10 Ibid. 11 ‘End‐to‐end or end in tears? Prospects for the effectiveness of the offender management model, Carol Hedderman in Reshaping probation and prisons: the new offender management framework. Mike. Hough, Rob Allen, and Una Padel, eds. Bristol: Policy Press, 2006 9

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The eighty‐four page manual on how to manage offenders concluded with this diagram which showed what offender management was supposed to be all about. It included a direction to split prisons and probation 10.4 This next – and final – stage of the build-up of the core model adds-in these staff into offender management roles, offender supervisor roles and offender administration roles. networks.

End to End Offender Management Manage

–

Supervise

–

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The offender interacting with a sequence of interventions and experiences to achieve the objectives of the sentence

Intervention I

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Intervention III

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The NOMS Offender Management Model

Elsewhere in the manual, NOMS officials sought to show what offender management was intended to The NOMS Offender Management Model achieve in the criminal justice system. The coordinating role for offender managers was supposed to

2.2.3 But for many – perhaps most – offenders, the relationship with the correctional bridge the gap between all the different stages, as opposed to the fragmented process which Carter’s services is rather more complex. It often involves consecutive, and sometimes analysis identified. However, as can be seen from the diagrams, if this coordination were to fail, the concurrent phases and sentences, each of which brings with it a change in the legalfor context, often inmost the physical and the organisational ones example: 2.2.3 But many and – perhaps – offenders, relationship withtoo. theFor correctional new model would, in practice, be no different to what went before. services is rather more complex. It often involves consecutive, and sometimes concurrent phases and sentences, each of which brings with it a change in the organisational Remand Remand legal context,Unpaid and often in the physical CO and ones too. For example: for in PSR PSR PSR Custody Licence Work

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are unique and varied.

NOMS longer term vision is that the design and delivery of Offender Management should span theare whole of any These correctional pathways unique andsingle varied.period of engagement, including periods of remand. Indeed, for complex and riskier cases it may well encompass non-consecutive periods engagement where these NOMS longerseparate term vision is that the design andofdelivery of Offender occur close inshould time tospan one the another. Management whole of any single period of engagement, including periods of remand. Indeed, for complex and riskier cases it may well encompass separate non-consecutive periods of engagement where these occur close in time to one another. Remand Remand

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Progress toward this vision will be incremental, and dependant upon available 13 for the application of the Model resources. For the time being, the priority beyond single sentences (and in particular for the allocation of a single Offender Manager) higherwill thebeshorter the anticipated period of engagement Progress toward thisisvision incremental, and dependant upon available and the higher the risks and complexity (tier) of the offender (for details of resources. For the time being, the priority for the application of the Model tiering, see section 13). beyond single sentences (and in particular for the allocation of a single

Fundamental to breaking down these institutional barriers, and thus absolutely critical to the new approach, would be a new IT system called C‐NOMIS which would be used by both prisons and probation. This would facilitate information sharing, case management and tracking and would, so the theory went, be the key to maintaining relational continuity and delivering interventions as a single coherent experience for the offender. 2. Competition and greater use of the private and voluntary sectors Carter stated that in the corrections context, service delivery should be further improved through greater use of competition from private and voluntary providers. He envisaged that within five years “contestability would have been introduced across the whole of prisons and community interventions, with outcome based contracts”.12 What this meant was unclear: it could have been merely another way of saying that the government should use the threat of competition to drive up public sector standards, or it could have been about engineering a genuinely mixed economy of provision, which would systematically bust open the near‐monopoly of the public sector in corrections, in order to entrench a permanently competitive environment. In its 2004 response to Carter, the government made clear that it had no wish to use the private sector for its own sake and that it would be the threat of competition which would be the weapon of choice: “We want the most cost effective custodial and community sentences no matter who delivers them. The experience with the Prison Service’s use of the private sector has been extremely positive. More significantly, the threat of contestability in running prisons has led to dramatic improvements in regimes and reductions in cost at some of the most difficult public sector prisons. So effective has contestability been that the public sector have won two prison contracts back from private sector operators… We intend therefore to encourage the private and ‘not for profit’ sectors to compete to manage more prisons and private and voluntary sector organizations to compete to manage offenders in the community. We want to encourage partnerships between public and private sector providers and the voluntary and community sectors which harness their respective strengths. As a market develops, offender managers will be able to buy custodial places or community interventions from providers, from whatever sector, based only on their cost effectiveness in reducing re‐offending (our emphasis).”13 This last sentence indicates just how radical the government’s vision for the role of offender manager originally was. The idea that he/she would actually be brokering – indeed, purchasing – interventions for individual offenders from a range of providers from the public or private sector could be said to have been a paradigm shift in our approach to correctional services – if it had been delivered this way. The model which emerged, as outlined later, was very different and actually far less ambitious.

Managing Offenders, Reducing Crime, Strategy Unit, December 2003 Home Office, Reducing Crime, Changing Lives, January 2004, http://www.probation.homeoffice.gov.uk/files/pdf/master%2020pp%20BB.pdf, p14

As indicated by the government the concept of contestability, rather than competition, was to be the principal tool to drive performance. NOMS introduced commissioning under a banner of improving contestability and driving up service improvement, moving away from a one‐size‐fits‐all model. By means of NOMS commissioners, it was intended that better use would be made of the skills and talents of the private and voluntary sector, with contestability not being introduced primarily to cut costs or to have competition for its own sake ‐ as outlined in a 2007 NOMS commissioning framework document: “Contestability is not another word for competition. It is a situation where a provider faces a credible threat of competition in the provision of some or all of the services they deliver. For NOMS it is a programme for Prison and Probation Services to demonstrate that services are provided to the highest possible standard and achieve results.”14 3. Purchaser/provider split Commissioning was also fundamental to the Carter vision, which emphasised the need for a ‘purchaser/provider split’. Carter recommended the creation of ten Regional Offender Managers (ROMs) who would work across the two services, commissioning rather than line‐managing services. Although there was no reason given for the recommendation in Carter’s report that the commissioning function should be embedded at the regional level, it was presumably thought that this would provide sufficient scale for commissioning services. The intention was that this would dramatically increase the level of contestability in the system, improving services by opening them up to new providers. The Carter report cited a ‘successful’ model in the field of criminal justice ‐ the youth justice reforms, whereby the Youth Justice Board purchases custodial places from the Prison Service, local authority and private sector providers.15 Carter also highlighted the good practice of multi‐agency youth offending teams (YOTs), made up of representatives from the police, Probation Service, social services, health, education, drugs and alcohol misuse and housing officers, which were set up in each local authority to coordinate youth justice within their area and provide services and programmes to reduce youth offending. However, as this report will go on to describe, the NOMS model that was rolled out did not replicate this structure – narrowly focusing instead on prisons and probation, rather than the link‐up with other agencies that are crucial for reducing reoffending.

14 15

NOMS Commissioning Framework 2007:19 Managing Offenders, Reducing Crime, Strategy Unit, December 2003, p23

Delivery The following sections discuss to what extent the original vision for end‐to‐end offender management and a competitive environment in the delivery of correctional services has been realised. We argue that, on the whole, NOMS failed to deliver on its objectives. Though there are many reasons for this, there are some common themes: Superficial analysis: A large portion of the blame for the failure of NOMS must go to the Carter Review itself. Its analysis – particularly in relation to the concept of ‘end‐to‐end offender management’ – was largely superficial and far too broad‐brush for the kind of massive reorganisation at national and local level that followed. In addition, as this report will go on to describe, the Review’s failure to recognise the fact that more than half of the services needed to reduce reoffending lie outside of the control of prisons or probation, has been a big factor in its failure. Top‐down implementation: Despite the lack of detail in the Review, the acceptance of its prescriptions in full led to a drive to impose them wholesale from the centre, without adequate regard for the practicalities on the ground. Huge efforts were made to fit service integration around the doctrine of end‐to‐end offender management, but it has clearly not worked. Constant reorganisation: The incredible amount of reorganisations within NOMS has sapped the morale of civil servants and front‐line workers, making all of the above problems much more difficult to rectify. Lack of political will: Even in spite of the failures on service integration, the system could be much more competitive, cheaper and more effective today if ministers in the previous government had meant what they said about engineering a competitive environment. However, six years on, the lack of political will has meant that none of the aims of Carter have been achieved to any meaningful degree. 1. National and local service integration NOMS has been beset by organizational upheaval and conflicting agendas since its inception, distracting attention from service delivery and sapping the morale of front‐line workers and officials in Whitehall. In this section, the development of NOMS as a national body is outlined and explanations are advanced for why this new body quickly became known as the ‘Nightmare on Marsham Street’. The implementation of the ‘offender management model’ is also explored, with suggestions made as to why the key parts of the concept ended up being abandoned or substantially altered. Trouble at the top It is important to state at the outset that there were different agendas and drivers behind the Carter Review and the subsequent creation of NOMS. The Cabinet Office’s priority was to bring about ‘seamless’ offender management and reductions in reoffending following the Social Exclusion Unit’s

2002 report, ‘Reducing re‐offending by ex‐prisoners’.16 This emphasized the need to address the social factors which contribute to reoffending ‐ identified as accommodation, finance, benefit and debt, children and families, health, alcohol and substance misuse, attitudes, thinking and behaviour, education, learning and skills. However, the Treasury’s primary motivation was to cut prison numbers through tougher and more credible community sentences and a new sentencing commission to produce guidelines that take account of prison capacity and the evidence about ‘what works’ to reduce reoffending. Carter himself wanted to see service delivery transformed, and more efficient use of resources, through greater use of competition. As a result of this, it might be argued that NOMS has never really had an overarching purpose – and as this report will go on to demonstrate, none of the three competing aims have been achieved to any meaningful degree. In addition to these competing aims, the body has been subject to a host of costly and confusing reorganizations. When NOMS was created, 14,000 staff were moved to NOMS Headquarters, although both the Prison Service and the Probation Service also retained their headquarters. Ten regional managers were then appointed (to provide the purchaser/provider split) and they began commissioning services in April 2006. Following recommendations in a further 2007 report by Lord Carter, this time on prisons, the government announced that the headquarters of NOMS and of the Prison Service would merge into a new National Offender Management Service Agency from April 2008, with the then Director General of the Prison Service (Phil Wheatley) at its head. Then, a new regional structure was put in place in April 2009, with Directors of Offender Management (DOMs) replacing Regional Offender Managers and Prison Service area managers. In addition to these significant structural changes at the top of the organisation, there was even more upheaval just below. Examples included: •

A national head of probation (John Raine) was appointed, then sacked. This lack of probation representation at the top of NOMS has since been a constant source of tension for the Probation Service and the National Association of Probation Officers (NAPO).

•

Some central units and directorates moved from Prison Service HQ to NOMS and back again ‐ and then back again.

•

The Prison Service was declared to be a ‘provider’ which must therefore not sit within NOMS as a commissioning agency or report directly to ministers, but officials within NOMS subsequently decided that this would not work, and so it was moved back again.

•

Probation staff were to be divided into offender managers, administrators, supervisors, and programme managers who were to be kept organisationally separate, but this was abandoned halfway through as unworkable.

Reducing re‐offending by ex‐prisoners, A report by the Social Exclusion Unit, July 2002

End‐to‐end offender management The first six months after the Carter Review were devoted to the organisational and structural changes (i.e. bringing prisons and probation under the control of one organisation) necessary to bring about end‐ to‐end offender management, without defining precisely what the concept actually was. Despite the fact that there was next to no detail about what end‐to‐end offender management was intended to look like in practice, the Review was immediately accepted in full by the then Home Secretary, Rt. Hon David Blunkett MP. The government’s near‐blanket acceptance of Carter meant that officials were subsequently obliged to spend years trying to force the Review’s prescriptions to work, despite there being no blueprint for delivery and very little consideration of the detail of the policies, not to mention the practicalities of delivering them on the ground. Following the initial structural changes, NOMS officials then set about trying to work out what the concept might mean in practice and later sought to implement the model in every prison and probation area in England and Wales. The NOMS offender management model (initially set out one year after the creation of NOMS, but revised in 2006) sought to give a structure for moving adult offenders through both community and custodial sentences. It is an 84 page document. A feature of the model was the identification of risk of harm and likelihood of reoffending, and the allocation of resources that were proportionate to these; in other words, the greater the risk the more resources needed to be provided to fulfil the objectives of the sentence and minimise the risk of harm and likelihood of the individual reoffending. The key underlying principle of the model was continuity of offender management throughout a sentence; an offender manager from within the probation service was appointed to the case when the offender first came within scope of the model (i.e. at the point of sentence), and retained responsibility until the sentence was completed. This offender manager was located in the offender’s home area or resettlement area. Their role included making an assessment of risk of harm and of need, and producing a sentence plan using the Offender Assessment System (OASys). Working alongside the offender manager were keyworkers delivering interventions (e.g. offending behaviour programmes), and case administrators supporting a number of offender managers. If the offender was in custody, an offender supervisor was appointed in the custodial establishment to act as a link between custody and the offender manager in the community. Implementation of Phases I, II and III The model was introduced in England and Wales in April 2005. Implementation was staged and Phase I focused on offenders in the community who were subject to community sentences and post‐release licences. At this stage, responsibility was broadly located within the remit of the probation service; there

was no requirement for Offender Management Units (OMUs) in custody. In Phase II, the model was extended to offenders serving certain custodial sentences. From 2006 it included offenders aged 18 years and over serving a determinate sentence of 12 months or more, who were either assessed as posing a high or very high risk of harm or who had been identified by local Crime and Disorder Reduction Partnerships (CDRPS) as Prolific or Priority Offenders (PPOs). Prisons were required to set up OMUs by 2006 and to deliver the offender supervisor role in custody. In January 2008, the model was further extended to include those sentenced to indeterminate periods of imprisonment for public protection (IPP prisoners) requiring probation areas to appoint an offender manager to take responsibility for the whole sentence, including the sentence planning and review process and the parole review. What has been delivered? The most in‐depth and authoritative research so far into the effectiveness of the NOMS model in joining up prisons and probation comes from a series of joint inspections by Her Majesty’s Inspectorate of Prisons and Her Majesty’s Inspectorate of Probation. In many respects, the inspections highlight serious and systemic flaws in the model itself, the way it has been delivered, or both. It is clear that the top‐ down imposition of the model has created problems and that many prisons and probation areas (and indeed, offender managers) are not facilitating the so‐called seamless transition from prison to community. The following problems were commonly identified in a number of different areas inspected for the arrangements within their custodial institutions and in the community, including London, the South East and the South West. The first problem related to the phased implementation of the model. The fact that offender management would initially only apply to a certain subset of prisoners at various stages has meant that prisons had to run two entirely separate systems – one for those within scope of the model at the different stages, and one for other offenders. This had led to decisions in some prisons to include more offenders within the work of Offender Management Units than were in‐scope at the time. This caused problems for probation, which was not required to allocate an offender manager to these additional cases and did not have the resources to do so. In addition, it was noted that it had not even been clear to prisons at the start which offenders were included in the model, particularly in respect of those who were foreign nationals. Prison managers also indicated that in the early stages it had been hard to identify exactly what the prisoners’ needs were going to be and how these related to the existing resources, for example probation departments within prisons or prison staff already involved in assessment and sentence planning.

These teething problems apart, it is clear from the various inspections that end‐to‐end offender management is still not being delivered in the way it was intended. The whole point of offender management was, as Carter stated, to avoid offenders falling through the gaps between prison and the outside. But the evidence is that the reforms have singularly failed to address this. In London prisons, the inspectorates concluded that “not enough offenders had offender managers allocated to them”. Only two‐thirds of the offenders had a named offender manager in the community – leaving fully a third at risk of falling through the gaps. Of those who had a named offender manager, less than half reported contact from them while they had been in custody, either by telephone, letter or visit. Contact was “often infrequent and disappointingly, most offenders did not think that they had been supported by their offender manager whilst in custody”.17 Only a third of offenders said that they had an offender supervisor in prison and only a tiny minority noted that they had at least monthly meetings to discuss sentence plan progress. Little over half of the offenders even had a sentence plan and only two‐ thirds of this group had been involved in the development of it. Most offenders had not attended a sentence plan meeting and of those that did only a minority found them useful. These results were common across all the areas looked at by the joint inspectorate teams. In London, just 38% of offenders had had contact from their offender manager since they had been in their current prison; 28% of these had received a visit and 25% had been contacted by letter (with the rest being contacted by telephone). Only 15% felt that they had been supported by their offender manager.18 Only 13% of offenders said that their offender manager attended sentence planning meetings, although it should be noted that the majority (80%) had not had a meeting at all.19 Furthermore, on average, only 38% of offenders indicated that they knew who to contact within the prison to gain help with community reintegration issues such as finding a job on release.20 In London prisons, it was described as “rare for offender managers to have good links with the prison, or to attend sentence planning boards.” It was suggested that where offender managers held a generic caseload, “they did not prioritise work with prisoners; as a result, planning for release was left until the last minute”. The London report concluded that “the culture in London Probation was one where work with prisoners took a lower priority and the offender management model was not being delivered as intended.” In

A Report on Offender Management in London, An Inspection led by HM Inspectorate of Probation, June 2008 18 Ibid. 19 A report on offender management arrangements in custodial institutions in London, A joint inspection by HM Inspectorates of Prison and Probation, 2008 20 Ibid.

reality then, offender managers merely maintained their previous roles (as probation officers) and did not act in the way that NOMS HQ expected them to. Why the model failed As a result of these widespread problems, NOMS commissioned a strategic review of offender management, which made changes to the model. The full report has never been made public, although a brief summary was eventually placed in the House of Commons Library. It hints at many of the problems discussed above, noting that “there are variations in practice and that the model is not always applied as intended”.21 It abandoned various requirements for the offender manager, including specifying that the offender manager no longer had to attend sentence planning meetings as a matter of course and relaxing the requirement of continuity of offender manager for pre‐ to post‐sentence. This just underlines how unrealistic it was to give a probation officer the role of offender manager for prisoners who might be located hundreds of miles away and who might not be in the community for years. The concept was never realistic given the caseloads involved and in the end, was quietly abandoned. Moreover, in trying to fix a problem of a silo mentality between prisons and probation, civil servants in Whitehall had merely created new silos. The top‐down implementation of the NOMS model was opposed by many (particularly probation staff) and because the model made clear distinctions between ‘manage’, ‘supervise’ and ‘administration’, it meant that probation and prisons staff were obliged to divide into new silos (not to mention another subset for those staff who had to deliver the interventions). What this means is that six years after Carter, his contention that there was “no clear ownership on the front line for reducing reoffending” appears to still hold true.22 All of this strongly indicates that the new model is simply failing to deliver on the front line. This is hardly surprising, given the top‐down nature of the reforms and the fact that prisons and probation have resisted the changes. As the outgoing Chief Inspector of Her Majesty’s Prison Service has said, “the implementation began from entirely the wrong end. Rather than working out what offender management meant, or could realistically mean, in prisons or probation, and then creating the most effective structure to support this, it began by creating a structure (or claiming to have done so) and then trying to decide what and how it would deliver.”23 The abandonment of some of the central purposes of the model happened at around the same time as the failure of NOMS’ efforts to integrate IT systems across prisons and probation. There is little doubt that the failure to create one single technological arrangement, facilitating enhanced data sharing, case

Offender Management Strategic Review: Summary of outcomes and recommendations, National Offender Management Service 22 Managing Offenders, Reducing Crime, Strategy Unit, December 2003 23 Speech by Dame Anne Owers to the Prison Reform Trust, 13th July 2010

management and links with other agencies, has contributed to the failure to make a reality of end‐to‐ end offender management. The failure of C‐NOMIS The Home Office realised very early on that end‐to end offender management would require better and more joined‐up information systems across prison and probation services than were either in existence or planned. Both services were already intending to replace their existing IT systems, but data sharing across the services did not form part of these projects. The Prison Service’s PRIME project began in 2003, aimed to replace its ageing prisoner management system by April 2007, whilst the National Probation Service aimed to introduce the key elements of a national offender management system beginning in 2005. The Home Office decided to take the PRIME project and use it as the basis for a national offender management information system across both services. The project, named C‐NOMIS, was launched in 2004. Its aims were to: •

reduce re‐offending through end‐to‐end offender management across probation and prison services and including providers from the private and voluntary sectors;

•

introduce more assertive case management and contestability in service providers to improve outcomes and value for money;

•

integrate IT support across custody and community sentences to facilitate the breaking down of barriers between prison and probation; and

•

improve means of monitoring compliance with National Standards, including more demanding community sentences and greater control and oversight of persistent offenders.24

A key benefit of C‐NOMIS was that a single offender database would provide real time information to offender managers, enabling them to manage offenders effectively across organizational and geographical boundaries. The approved lifetime cost of the project, as at June 2005, was £234 million to 2020.25 The new system, supplied by EDS, was to be fully operational by January 2008. As damning reports from both the Public Accounts Committee and the National Audit Office have described in detail, the mismanagement of C‐NOMIS proved to be an unmitigated disaster and a huge waste of public money. By July 2007, NOMS had spent £155 million, C‐NOMIS was two years behind schedule and estimated

The National Offender Management Information System, National Audit Office, HC 292 Session 2008‐ 2009, 12 March 2009 25 Ibid.

lifetime project costs had risen threefold to £690 million. The government imposed a moratorium while options for reducing the project cost were sought. During autumn 2007, NOMS evaluated a range of options and, in January 2008, recommenced work on a re‐scoped programme with an estimated lifetime cost of £513 million and a final delivery date of March 2011. A single database was now off the agenda, with the final project now consisting of five separate projects. In other words, the very concept of seamless working between prisons and probation was abandoned. All of this came about, according to the National Audit Office, as a result of inadequate oversight by senior management, poor planning and financial monitoring, a significant underestimate of the technical complexity of the project, weak contractual arrangements and poor supply management.26 The Public Accounts Committee noted a number of other issues which contributed to the failure of NOMS to implement C‐NOMIS, claiming that “end‐to‐end offender management was little more than a concept, and what it meant in practice and the IT needed to support it had not been worked through. Rather than invest time and resources to develop and standardise the new ways of operating across its business areas, NOMS sought an IT system to unify the business and achieve end‐to‐end offender management. There was no sustained effort by NOMS to simplify and standardise its business processes reflecting management's misplaced confidence in C‐NOMIS, their unrealistic expectations of what could be achieved by an IT solution and their underestimation of the time and costs to deliver it.”27 2. Commissioning and competition As the outgoing Chief Inspector of Prisons has said, implementation of offender management was “entirely the wrong way round”; NOMS was created to drive a concept that was ill‐defined, and it is little wonder that, as a result, it has been through three major reorganisations since it was created in 2004. Although NOMS appears to have failed to properly implement a new model for managing offenders and reducing reoffending, Carter’s reforms should have paved the way for a more competitive environment for the delivery of services to reduce reoffending. The key actors for delivering this more competitive environment were intended to be Regional Offender Managers, who would provide the purchaser/provider split, as per Carter’s recommendation. However, it was unclear where the suggestion that commissioners should sit at regional level came from, and what the justification for this additional tier of bureaucracy was. As will be detailed below, the lack of proper analysis and thought about where accountability and commissioning should take place has been a perpetual problem since NOMS was created.

Ibid. The National Offender Management Information System, Public Accounts Committee, Fortieth Report of Session 2008–09, 29 June 2009

Where does commissioning really take place? Despite Carter’s vision that commissioning should take place at a regional level, in reality there is still a mixture of local, regional and national commissioning. Indeed the Offender Management Act of 2007 makes it clear that commissioning should occur at regional and local as well as national level. Regional Managers, who have since become Directors of Offender Management, are to act ‘on behalf of the Secretary of State, take the strategic overview for their region and commission some services directly on a regional basis, where this is most appropriate.’ Other services are in theory meant to be commissioned at the area level by the ‘local lead provider, with whom the regional commissioner will contract for that purpose.’ Commissioning of interventions for prisons and probation are generally done entirely separately and there is little or no coordination of this by the DOM.28 Around 15‐20% of interventions are commissioned nationally or regionally (but mainly nationally), with the rest being drawn down by prisons to suit their individual needs or probation boards (now trusts) at a more local level.29 The portion of the 15‐20% which may be commissioned at a regional level is also extremely inflexible and there is little degree of autonomy for DOMs to innovate or move any money around, due to the fixed nature of many of the costs (particularly in relation to prisons). For example, in the last five years (i.e. since the creation of ROMs – the precursor to DOMs), not a single penny has flowed from the prisons budget to the probation budget, or vice versa, at a regional level.30 So, what does the DOM actually do? The fact that NOMS HQ does not have a good idea about its staff costs has made it very difficult for DOMS to play any sort of commissioning role. NOMS has a better grasp of the cost of goods and services in prisons than was previously the case due to its centralised (i.e. not regional) procurement system. However, 51% of its costs relate to staff expenditure, which is not recorded in a manner which enables costing of individual activities.31 This has meant that, in reality, DOMs are acting mainly as line managers for clusters of prisons (perhaps unsurprisingly in one respect, given that they replaced Prison Area Managers) and probation trusts, and are spending most of their time managing performance at a local level and monitoring contracts that are much closer to Service Level Agreements, rather than actually commissioning services. This is very far from what Carter or the previous government intended. Despite having a very limited commissioning role, DOMs are also attempting to engineer a degree of strategic coordination. The government has introduced a reducing reoffending policy which seeks to steer offenders through seven ‘pathways’ crucial to reducing reoffending ‐ accommodation; health and social care; finance, benefit and debt; education, training and employment; children and families;

Ibid. Private interviews 30 Commons Hansard, column 236W 20th July 2010, 31 Ministry of Justice Financial Performance Report, National Audit Office, 6th July 2010 29

attitude, thinking and behaviour; drugs and alcohol rehabilitation.32 It is clear from this list that a large number of services other than those required by prisons and probation are needed to reduce reoffending – all of them outside of the control of the DOM. So DOMs have put in place partnership boards with the relevant public sector bodies at a regional level, in an attempt to establish cross‐agency networks designed to aid rehabilitation, resettlement and reduce reoffending. These are intended to complement the three re‐offending alliances (The Civic Society Alliance, the Faith, Voluntary and Community Alliance, and the Corporate Alliance) which NOMS has established at a national level. However, it is questionable whether these networks are best created at a regional level. Most of the partners who need to be engaged with reducing reoffending operate at a much more local level. For example, local authorities, crucial for providing a whole host of services (particularly accommodation), local job centres and primary care trusts sit at a local authority level and this is where strategic partnerships need to be built. These considerations, and discussions conducted for this report (including with DOMs), cast into doubt whether these regional structures are needed at all. When the costs of this additional tier of bureaucracy are taken into account, the case for abolishing DOMs and their offices is strengthened considerably. The cost of staffing DOM offices is £25.4 million this year (and 10% of these staff are deemed to be surplus by the DOMs’ offices). 33 Including the costs of premises, we estimate the cost of retaining the ineffective DOM structure to be between £110 and £120 million in the next four financial years to 2014/15. Lack of competition in prisons There are currently 135 prisons and prison clusters in England and Wales, eleven of which are private prisons. Since 1991, when the first private prison was contracted, five prisons have been put out for management competition, while nine prisons have been subject to a PFI competition. The drive for increased competition or contestability was supposed to be facilitated by the ROMs (now the DOMs) acting as a split between purchaser and provider. But as DOMs are not really commissioning services – and certainly not taking decisions on capital spending for prisons ‐ it should be no surprise that any steps towards competition in the prison system have been slow, piecemeal and largely ineffective in driving efficiencies or innovation. In order to entrench a truly competitive environment in a sector that has previously had minimal private and voluntary sector involvement, two major developments would be needed. First, political will to drive through the reforms and challenge vested interests. Carter’s vision for competition was radical and could have been transformative. He did not advocate mere contestability or limited market‐testing; his

32 33

NOMS, The National Reducing Re‐Offending Delivery Plan, 2005 House of Commons Hansard, 5th July 2010, column 116W

recommendations envisaged a real and sustainable competitive environment. However, the government’s immediate response to his report was a missed opportunity – focusing only on using the threat of competition to drive up public sector standards. However, it was not just the initial response from the government that was the problem. In the last five years, the government rhetoric on contestability has completely failed to match the reality. The first test of ministers’ commitment to the agenda came following a NOMS announcement that three young offender institutions in Kent (Swaleside, Elmley and Standford Hill) would be the first sites to be market tested as part of the government’s contestability agenda.34 This would involve the public sector re‐ bidding, along with alternative providers, to run the prisons. However, in the face of representations made by the Prison Officers Association (POA), Home Secretary Rt. Hon Charles Clarke MP announced that the market‐testing would be abandoned, with NOMS and ministers having failed to stand up to the unions.35 The government then set out a strategy for competition in 2006, following the appointment of the new Home Secretary, Rt. Hon John Reid MP. It was hugely ambitious in scope and clearly designed to represent a step‐change in the delivery of correctional services– with fully a quarter (by value) of NOMS services to be competed for by 2011. The vision was for “a five year programme of competitions, with a value of up to £9 billion, covering around a quarter of NOMS current annual expenditure on adult offender services. Additional to this is the value of competitions for any prison establishments or probation trusts which fail a performance test or fail to deliver agreed improvements.”36 In fact, there has actually been less competition by value in the last five years than there was in the five years before the Carter Review. This is partly due to the standstill in prison building under the previous government (if ministers had built adequate prison capacity, it would most likely have been done under PFI arrangements). However, it is mostly because, as above, ministers consistently marched NOMS officials, prison staff and probation officers, up the hill and then back down again in the face of threats and opposition. Our discussions with officials have highlighted not only how distracting this was for them, but also their concern at the alienation felt by private and voluntary sector providers who had spent a lot of time and more than a little money in attempts to enter the market. In addition to political will, a good understanding of costs is clearly necessary for a competitive environment, so that the private and voluntary sector can compete on a truly equal footing. As the National Audit Office has pointed out, historically NOMS had a very poor understanding of its costs and still has very little idea whatsoever about the costs of its staff activities. Although NOMS has embarked on a Specification, Benchmarking and Costing programme, this did not begin until May 2008. The

Publications relating to Prison Service matters, 2004‐2005 http://www.hmprisonservice.gov.uk/assets/documents/10000DFEappendices6‐8.pdf 35 Private prison plans put on hold, Police Oracle, 23rd May 2005 http://www.policeoracle.com/news/Private‐Prisons‐Plan‐Put‐on‐Hold_7353.html 36 Improving Prison and Probation Services: Public Value Partnerships, NOMS, August 2006

programme aims to develop and implement new costing systems, and define specifications for the various activities delivered in prisons and probation services to enable comparisons of relative cost and performance across NOMS. The programme is not scheduled to be completed until March 2012. The NAO also point out that “more needs to be done to improve prison and probation staffs’ understanding of the importance of the programme and to deliver it more quickly.”37 In 2008, the Ministry of Justice again conceded that there are prisons within the public estate that have consistently performed poorly and have had opportunity to improve. The department believes there are significant improvements in quality of service and efficiency available through the application of competition. However, there has been only very limited market testing in recent years, including two high cost or low‐performing prisons in 2009. However, next year could see an increased degree of competition, with initially five public and private sector prisons due to be market‐tested, though this is largely as existing contracts are due to expire. Lack of competition in probation Arguably, the area of probation is where Carter’s vision for a competitive environment has failed most completely. To begin with, the Secretary of State did not even have the power to tender probation services. Indeed, it was not until the 2007 Offender Management Act that the private and voluntary sectors were theoretically enabled to participate more fully in the market for probation services. The government had set probation boards a non‐mandatory subcontracting target (5% in 2006/07 and 10% in 2007/08). Few probation boards met this figure, and the target was abandoned without public explanation. Through the 2007 Act, and by creating new organizations to replace Probation Boards ‐ Probation Trusts ‐ to deliver services on behalf of the Justice Secretary, the intention was to deliver high quality probation services from a range of providers, which would, in turn, drive efficiency and innovation. The standards a Probation Board must demonstrate to become a Trust are high. Areas assessed include: leadership; performance management; local engagement; and effective resource use. If Probation Boards fail to become Trusts, other arrangements will need to be made to replace them. Boards can propose to be amalgamated with successful neighbouring Trusts, or alternatively, its services will be competed in the open market. Services provided to courts by the probation service such as pre‐sentence reports are excluded from competition because they are reserved to the public sector by statute. Alternative arrangements for public sector delivery are made for court services, in areas where other probation services are contracted out.

Ministry of Justice Financial Performance Report, National Audit Office, 6th July 2010

However, the eight Probation Trusts that were in existence in 2009/10 (i.e. all of them) had delivered just 3.2% of £190 million worth of expenditure through the voluntary or private sector – far less than even the 10% target for Probation Boards.38 This clearly illustrates that Probation Trusts are not delivering the step‐change required in efficiency and innovation that was intended. The problem is that in probation there is still no real purchaser/provider split. Acting as both provider and commissioner, Trusts that are run by the probation service are incentivised to protect the position of the public sector probation service. The Ministry of Justice is currently encouraging Trusts and Boards to focus on ‘best value’. But this should include commissioning services rather than providing them directly. The Secretary of State has the power, under the 2007 Offender Management Act, to compete probation trusts and contract them out. Merely creating them does not appear to have delivered anything like the changes required and a more radical and ambitious plan is clearly needed. 3. Reducing reoffending The ultimate test of whether NOMS has delivered on offender management is whether levels of reoffending have reduced in recent years. If links have been strengthened between prisons and probation and more effective use of interventions has been made, reoffending levels would have reduced and NOMS could be said to have had some demonstrable impact, despite the qualitative evidence from the various inspections and the failure of the C‐NOMIS project. Measuring reoffending is a complex business (indeed, one criticism of NOMS and the Department might be that they have yet to find a way to express reoffending levels in a way that is communicable to the public). Every year, the reoffending outcomes of a cohort of around 50,000 offenders (including both ex‐ prisoners and those who have served community sentences) are tracked. Reoffending is measured according to whether an offender is reconvicted of another criminal offence within a one year period. However, this excludes cautions (even though these require an offence to be detected, a suspect identified and, crucially an acceptance of guilt on the part of the offender) and re‐arrests (where no guilt is proven or accepted). The Ministry of Justice states that is necessary to compare actual reoffending to a predicted rate as the outputs of the criminal justice system (and therefore the rate of reoffending) will depend, in part, on the characteristics of offenders coming into the system (just as the examination pass rate of a school will be related to the characteristics of its pupils). So the headline rate of actual reoffending is then compared to a ‘predicted rate’. The predicted rate is calculated according to the specific characteristics of the cohort for that year (e.g. age, gender, length of criminal career, number of previous custodial sentences etc).

House of Commons Hansard, 6th July 2010, column 176W

Clearly, the issue of whether an individual has reoffended or not is only part of the picture and would, on its own, be a fairly blunt and unsubtle measure. The frequency of offending is perhaps just as important. So, to complement both the actual and the predicted reoffending rates, the previous government also introduced new measures of reoffending, including statistics on the frequency at which individuals reoffended and the severity of their re‐offences. Overall, it would appear that a good amount of progress in reducing reoffending was made between 2000 and 2006. Between 2003 and 2006, the actual rate of reoffending fell faster than the predicted rate would have indicated and has only risen subsequently in proportion to the rise in the predicted rate. Actual and predicted reconviction rates

% reconvicted within one year

46 44 42 40 38 36 34 2000

2002

2003

2004

Predicted rate

2005

2006

2007

2008

Actual rate

At the same time, the frequency at which offenders have reoffended has also fallen, with reoffenders committing fewer offences in the year following the end of their sentence than in previous years. This would also indicate success in reducing reoffending.

Frequency of reconvictions

500

Reconvic ons per 100 reoffenders

450 400 350 300 250 200 150 100 50 0 2000 Q1

2002 Q1

2003 Q1

2004 Q1

2005 Q1

2006 Q1

2007 Q1

2008 Q1

Frequency of reconvic ons

This apparent success coincided with substantial investment and rapid implementation of offending behaviour programmes according to the ‘what works’ agenda. What Works Since 2000, the Home Office (and subsequently NOMS and the Ministry of Justice) have directed large amounts of money to ‘evidence‐based programmes’ designed to reduce reoffending. Delivered in the community and in prison, these offending behaviour programmes are based largely on North American evidence about what works to reduce reoffending. Investment in these programmes has now reached almost £400 million per year through NOMS. The programmes include around 40 cognitive‐behavioural programmes to improve thinking skills, reduce aggression, motivate engagement with drug and alcohol treatment and reduce domestic violence. However, the Home Office literature review of the available evidence which formed the basis of the investment found that the studies which showed reductions in recidivism for programme participants was generally weak or inconclusive.39 Opinion appears to be split within the Ministry of Justice as to whether the investment in these programmes in the community and prison has caused the reduction in reconvictions. What is clear is that there is no direct causal link between the implementation of offending behaviour programmes and

What works: the evidence, Home Office RDS, 1999

the apparent level of reoffending going down. As our analysis will show, there may be a less obvious – and much more worrying – explanation. Has reoffending really fallen? One of the clearest problems with measuring recidivism is that not all criminal offences are detected. For instance, in 2009/10, the British Crime Survey (a victim survey – and generally regarded as the most accurate measure of crime) indicated that there were almost 9.6 million crimes.40 Less than half of these offences ‐ 4.3 million ‐ were reported to police (classed as ‘recorded crime’). However, just 1.2 million of these were formally ‘detected’ – meaning those instances where an identified offender receives some formal sanction such as being charged or summoned, cautioned, reprimanded or given a final warning.41 There is, therefore, an automatic ‘known unknown’; an offender (whether eventually found guilty or not) is only identified for one in every eight crimes. To a certain extent however, this in‐built level of bias must simply be tolerated; the cohort level used to measure reconviction is large and at the very least, trends can be tracked and recognised. However, there has so far been no discussion in policymaking circles about the other bias to which reconviction levels are susceptible. As stated ‘reoffending’ levels are measured according to whether an offender has been reconvicted of a criminal offence. The latest reoffending statistics confirm that out‐of‐ court disposals (i.e. cautions or warnings) are not counted.42 This means that more than a third of re‐ offences are missed out in the data (in 2008, 37% of offences were dealt with via a caution). More importantly, it means that reconviction statistics are very vulnerable to changes in police practices, i.e. how the police decide to process an offender once he/she has been detained. Over the last decade, there has been a big increase in the proportion of offences dealt with by a caution outside of a court setting. Various explanations have been given for this trend, including the burden of police bureaucracy which makes it more arduous to take a criminal offence through the traditional court setting. As cautions are not counted as part of the reoffending rate, we have examined the relationship between the trends in reoffending rates (both the severity measure and simply whether or not an individual has reoffended) and the caution rate (i.e. the proportion of all offences for which a caution is given) since 2000 (the baseline used by the government to compare progress made).

Crime in England and Wales 2009/10, Home Office Ibid. 42 See Appendix C of Reoffending of Adults: Results from the 2008 cohort, Ministry of Justice 41

Reconviction rate vs. caution rate

50 45 40

Percentage

35 30 25 20 15 10 5 0 2000

2002

2003

2004

2005

Reconvic on rate

2006

2007

2008

Cau on rate

500

450

400

350

300

250

200

150

100

Cau�oning rate %

Reconvic�ons per 100 reoﬀenders

Reconviction frequency vs. caution rate

0 2000

2002

2003

2004

2005

Frequency

2006

2007

2008

Cau�on rate

Variation in reconviction frequency rate and caution rate against 2000 baseline

40 30

Percentage

20 10 0 -10 -20 -30

2002

2003

2004

2005

Reconvic�on frequency rate varia�on

2006

2007

2008

Cau�on rate varia�on

Annual variation in caution and reconviction rates

Percentage

-5

-10

-15

-20

2002

2003

2004

2005

Reconvic on rate varia on

2006

2007

2008

Cau on rate varia on

(Sources: Criminal Statistics 2008, Chapter 3, Ministry of Justice; and Reoffending of Adults: Results from the 2008 cohort, Ministry of Justice).

While the caution rate will not explain every single part of the reduction in reconviction rates, the clear relationship between the two is unmistakable. It puts into sharp context any assumption, claim or hope that £400 million worth of investment in offending behaviour programmes, or the introduction of the NOMS model to bring prisons and probation closer together, have reduced reoffending. As a result, while it cannot be said with any absolute certainty whether ‘real’ reoffending has risen or fallen, in all likelihood it has remained broadly stable (with the obvious caveat that just one in eight offences result in a sanction).

The remarkable correlation between the caution rate and both measures of reconviction (the frequency measure and the percentage of offenders who are reconvicted) should also call into question both the Ministry of Justice’s claims to have reduced reoffending and, more importantly, the measure of reoffending itself. It is particularly odd that the reoffending rate statistics for juveniles include cautions, final warnings and reprimands, but for adult reoffending, only court convictions are counted. Even more anomalous is the fact that local adult reoffending statistics (which have been published on a quarterly basis since 2007) do include cautions. The next section discusses reform to NOMS to reduce reoffending. As we outline, radical reform of the criminal justice system to make it more outcome‐focused could be destined to fail unless the reoffending rate is reformed to give a more accurate impression of the scale of recidivism.

Recent policy developments to reduce reoffending The need for a wider focus For the last four or five years, NOMS has been trying to force a model on local areas that misses a crucial part of the picture. The fact that the then Home Secretary accepted the recommendations of Carter in full, without any time for debate or proper consideration, meant that officials were not in a position to consider the practicalities. This report has already described the rather superficial analysis and broad‐brush approach of the offender management recommendations in the report. The result was that the Home Office and then the Ministry of Justice spent years trying to ‘force’ Carter’s vision to work without any clear blueprint and without being able to amend his ideas because they had all been ‘accepted’ by government. It is little wonder then, that reoffending levels are unlikely to have fallen. An emphasis on resettlement of prisoners is now, to differing degrees, a core part how of prisons are set up (particularly in the last two years since NOMS was last reorganised). However, this could have been achieved without the prescriptive NOMS model and the fusing together of prison and probation staff roles. It could, for instance, have been achieved to a good degree simply by altering the performance management regime for staff. Central targets set by the previous government have been unchallenging and short‐term, and not conducive to seamless offender management. For example, NOMS has a joint target for prisons and probation for the number of offenders to be in employment at the end of their sentence, order or licence target, but the target is just 35%. It is also an extremely unsubtle target; the key question should be how stable and long‐term employment is. Another example where it would be far better for NOMS staff to focus on the longer‐term outcomes that pertain to reoffending is the issue of housing. Their current target is for 79% of offenders to be in settled and suitable accommodation at the end of their sentence. That means NOMS has met its target

if one fifth of offenders leaving prison or ending their community sentence have no fixed address or are homeless. Not only is this an acceptance of failure which leaves offenders primed to reoffend, but it also says little about the outcome for an offender after, for instance, three or six months. Why do these targets lack so much ambition? The fundamental problem with Carter’s vision was that it only dealt with part of the reducing reoffending picture. The Cabinet Office’s preference for addressing the social causes of reoffending (which necessarily requires agencies outside of the criminal justice system) was ignored, while the Home Office’s emphasis on tackling criminality through offending behaviour programmes was prioritised. As explored above, there is no conclusive evidence that these have caused any reduction in reoffending in England and Wales (although they have certainly encouraged disinvestment in things for which there is little empirical evidence, such as group counselling or drama therapy). It is surely common sense that, for the optimum approach to tackling reoffending, both aspects are required ‐ one is no good without the other. It is no use delivering a package of drug‐treatment and cognitive‐behavioural programmes in prison to an offender who is homeless, heavily in debt and unemployed on release. Likewise, providing housing, job training and financial advice to a community‐ sentenced offender who is still using drugs and has no motivation to give up his or her criminal lifestyle, is not going to reduce reoffending in the long‐run. What is required is a package of wraparound support, tailored to the offender’s needs. The model cited as ‘successful’ by Carter (the youth offending team) is made up of representatives from other local agencies such as social services, the police and health practitioners ‐ in addition to criminal justice actors. Yet Carter did not attempt to replicate this model. Indeed, the Home Office’s Prolific and Priority Offender scheme (PPO) was already up and running by the time of Carter – and it too contained recognition that concerted efforts to embed a multi‐agency approach held the most promise for reducing offending. However, this model was also ignored, and NOMS went on to persist with a purely prisons and probation focus at a regional level which, as we have seen, was largely unsuccessful ‐ and as a result, most of the recommendations which formed the basis of end‐to‐end offender management have now been quietly dropped. It is not within the gift of NOMS or DOMs to commission services from outside of the criminal justice system to reduce reoffending. The role of NOMS, DOMs and employees within the prisons and probation services locally is largely limited to one of persuasion; cajoling, influencing and attempting to engage other departments and local agencies in the reducing reoffending agenda. But there is no real policy lever to compel this collaboration. This is compounded by the fact that there is very little or no incentive for other government departments, or the local agencies underneath them, to pool resources, expertise or knowledge to help reduce reoffending. In this sense, the Carter Review represented an enormous missed opportunity to develop a cross‐departmental strategy, with a local and national element, and to get all parts of the system aligned and working in tandem.

Integrating offender management The typical offender – whether on a community sentence or recently released from prison – will have a variety of social problems which, if reoffending is to be reduced, require some kind of response from the state. As the seven pathways identified by the government to reduce reoffending demonstrate, the vast majority of offenders will have one or more problems with addiction, unemployment, homelessness, debt, mental health and family relationships. Female offenders may also have problems with domestic abuse and prostitution which need to be addressed (making nine pathways in all).43 Unsurprisingly, these offenders with multiple needs are some of the highest‐cost individuals (and form some of the highest‐cost families) to the state and local agencies. Persuading local jobcentres, health workers, housing associations and local authorities to prioritise offenders is very important ‐ it is with these external agencies that most of the tools and capacity to reduce the demand on the criminal justice system exist. In the last two years, there has been greater recognition of the need for the government to focus more widely than on prisons and probation ‐ by implication, a rejection of Carter’s original vision. A number of new models for delivering offender management have developed which give greater regard to the role of non‐criminal justice actors for reducing reoffending. Government policy is now focusing more on embedding ‘integrated offender management’, or IOM, which involves local agencies in reducing reoffending. This approach (and the best‐funded example – London’s ‘Diamond Initiative’) has demonstrated the need for more integrated delivery and a better understanding of how one public service impacts on another. The goal of all integrated offender management is to re‐think the traditional roles of agencies and the way they work together to improve outcomes, whilst cutting cost. In addition to better integration, there has been one other significant policy development in the last two years – payment by results – which offers more scope for progress in the future. Integrated Offender Management44 Integrated Offender Management (IOM) is a joined‐up approach to the management of offenders by local criminal justice agencies and key partners (the police, NOMS, YOTs, Local Authorities, Primary Care Trusts (PCTs), voluntary and community groups etc) in response to a shared analysis of local crime and offending problems. It builds on the principles underpinning the approach to Prolific and Priority Offenders (PPOs), but with a broader scope to target more priority groups, including offenders on short sentences who are not subject to statutory supervision by probation.

Increasingly, practitioners are speaking about nine pathways instead of seven, recognising women‐ specific issues http://www.justice.gov.uk/publications/docs/east‐midlands‐commissioning‐plan.pdf 44 Integrated Offender Management, Government Policy Statement, March 2009

IOM is intended to encourage new thinking about the roles of different agencies and a reconfiguration of service delivery across and between partner agencies in the public, independent and private sectors. It is intended to lead to a more coherent experience for offenders ‐ encouraging more productive relationships and promoting rehabilitation. The aim is not only to deliver better co‐ordinated services and improved outcomes, but also to achieve results whilst improving efficiency and cutting cost. Six IOM ‘pioneer’ areas have been given Home Office and Ministry of Justice support. While evaluations of the pilots have yet to be published by Sheffield Hallam University, our discussions with officials and practitioners have indicated that the approach has been promising. The Diamond Initiative The Diamond initiative is a ground‐breaking approach to reducing re‐offending amongst offenders who have been sentenced to less than 12 months. It was developed by the London Criminal Justice Partnership and is currently running in six London boroughs. Based on the ‘Million Dollar Block’ approach developed in the USA, the Diamond Initiative explores the potential for a justice re‐investment approach in London. It tests whether enhanced criminal justice and community outcomes can be delivered by targeting areas with high volumes of resident offenders. Small multi‐agency teams give intensive support to offenders to provide the bridge from the criminal justice system to the services they need to help them live productive and law‐abiding lives. This includes those services often provided by the voluntary and private sector, such as employment and housing. The Diamond team, through its expertise in working with repeat offenders, can also provide a point of contact and assurance to service providers in respect of the risk management issues that arise when dealing with offenders. Diamond teams consist of police, probation and local authority staff and each agency brings a knowledge and a skill set in respect of offender management and resettlement. The role and expertise of probation in offender management is self‐evident, as is the knowledge and skills around resettlement that the local authority staff bring to the team. However, the role of the police in the Diamond model is crucial and represents a pioneering use of police staff in offender management. The police already have the skill set to engage with offenders and Diamond enables them to develop this in respect of a new approach to offender management.

The police, as a uniformed service, are at the heart of the Diamond approach and provide a key component that strengthens and supports the authority of the team and the message to the offender; that support and access to services is predicated on them taking responsibility and stopping offending.45 Payment by results In addition to this new focus on integrating services outside of the criminal justice system, there has been one other significant policy innovation in recent years, which may, in time, come to define the way in which reoffending is addressed in this country. In the 2007 prisons policy paper, Prisons with a Purpose, the then Shadow Justice Secretary, Nick Herbert MP, proposed the idea of using a new mechanism ‐ payment by results ‐ to reduce reoffending.46 The proposal subsequently formed part of the Conservative Party’s 2010 General Election Manifesto and the Coalition Agreement, which contained a commitment to pay independent and voluntary providers by results for reducing reoffending, with the money coming from savings accrued to the criminal justice system by reduced crime. Despite the innovation being criticised in public by the then Justice Secretary Rt. Hon Jack Straw MP in 2007, officials in the Department were permitted to pursue the policy privately and began working up the detail of how such a mechanism might be applied to improve reoffending outcomes. As a result, a new pilot scheme was set up in March 2010 in HMP Peterborough. The Peterborough Social Impact Bond Pilot Social Finance and the Ministry of Justice launched the first ‘Social Impact Bond’ (SIB) in March 2010 to fund work with short‐sentence prisoners to break the cycle of re‐offending. This SIB has raised social investment to fund services for 3,000 prisoners leaving Peterborough prison. If the re‐offending rate (measured against a comparator group) drops by more than 7.5% overall, investors will receive their investment back plus a return. The return will be proportional to the drop in the rate of re‐offending – the greater the drop in the re‐offending rate, the higher the return to investors, up to a cap. Theoretically, SIBs will enable government to achieve better value for money from its public services. Rather than paying for a service regardless of its success, government only pays when outcomes are delivered.

Information provided by the London Criminal Justice Partnership Prisons with a Purpose: Our sentencing and rehabilitation revolution to break the cycle of crime, Conservative Green Paper 2007

Lessons from recent policy developments Integration of services Recent initiatives that have sought to better integrate criminal justice agencies with other key public services are locally‐driven; all relevant local partners from the public, private and voluntary sectors are involved in planning, decision‐making and funding choices. They jointly discuss and agree the offender groups that local agencies want to target and prioritise. IOM and Diamond have grown from the ground up ‐ as part of a determination to get a much better grip on repeat offenders whose criminality causes the most concern in local communities and who present high demands on criminal justice agencies and, importantly, public services in general. Importantly, each area that has adopted an integrated approach has done so with different governance arrangements, funding streams and accountability mechanisms. This is in contrast to NOMS, which has tried to drive change from the centre with tightly‐prescribed models, structures and pilots. However, although the development of integrated approaches is very welcome, discussions with departmental officials and practitioners reveal that there are some fundamental issues which need to be rectified if service delivery is to be transformed. It is clear that ‘true’ integration has not yet been achieved. In theory, services are becoming more integrated but in reality key partners have been extremely difficult to engage. It is a common refrain of those involved with integrated offender management that there has been little or no practical engagement or join‐up with local jobcentres, housing providers or Primary Care Trusts. The biggest signal that true integration has not been achieved is that there has been extremely little pooling of budgets to support IOM. Pooled budgets are absolutely fundamental to achieving buy‐in and cooperation from those agencies whose expertise and engagement is so badly needed. Without pooled funding and the consequent cooperation, there is no alignment of incentives, no service reconfiguration, no transformation in delivery and no step‐change in outcomes. Even in the pioneer areas (to which NOMS and the Home Office have given considerable support), there is no real understanding of the costs of existing services. Unlike the ‘Total Place’ pilots of recent years (which examined how a ‘whole area’ approach to public services can lead to better services at less cost), there have been no serious mapping exercises to identify current spend. It is increasingly vital that local partners have a clear view of the totality of spending in their areas in relation to key local priorities. This should include how different service providers interact with each other in delivering services and getting results. The lack of this analysis makes it incredibly hard to persuade those local agencies which are not traditionally thought of as contributors to the reducing reoffending agenda to devote people, time and resources to the initiative.

However, perhaps the biggest reason for the lack of pooled budgets is that there is little or no benefit to local agencies if criminal justice outcomes are improved – most of the financial benefits through reduced reoffending accrue to the police, probation, prisons and the courts. Unsurprisingly, given that IOM areas have not mapped current spending patterns, there has also been no cost‐benefit analysis carried out following the theoretical integration of services ‐ so there is not even any way of discovering what, if any, benefits there might be for external agencies. Payment by results Paying by results to reduce reoffending, whereby the state begins to pay only for success and no longer for failure, is a potentially exciting and much‐needed development. But policymakers have to decide what it is for, and how it is to be delivered. This report’s earlier analysis illustrated the difficulties in measuring the criminal justice outcomes of offenders and attributing causation. If our analysis is correct, reconviction rate patterns are mainly influenced by changes in decisions about whether to convict. So, if the primary purpose of paying by results is to reduce costs to the criminal justice system (which largely come from reconvicting offenders as a result of court costs, investigation and prosecution costs and the cost of a sentence), then there is little point in paying voluntary and private providers by the results achieved in reducing reconvictions. Proponents of payment by results may rightly argue that causation is not a huge concern of the state so long as outcomes are improved. But if the outcome is false, the state’s role is effectively reduced to designing a complex payment and governance system, and then giving away money for no real benefit whatsoever. The money would logically be far better spent by simply paying the police and the Crown Prosecution Service to stop sending offenders to court – plainly not an acceptable course of action. If, on the other hand, payment by results is about reducing ‘real’ reoffending, crime and harm to victims, then the measure of reoffending must change. Of course, this may be less attractive because costs are less readily identifiable for crimes that have less serious consequences. But, as will be discussed in the next chapter, there is scope for payment by results to have a wider focus, encompassing a broader range of outcomes. There is a second crucial issue with the idea of payment by results which needs to be worked through. This report has so far stressed throughout that reducing reoffending requires much more focus on non‐ criminal justice, public sector agencies. The Coalition government’s proposals, however, focus solely on paying independent and voluntary sector providers by results. The attraction of such an approach is clear, and the reason for the focus is understandable. The delivery of services to high‐cost users of public services (of which offenders are undoubtedly one group) is fractured, bureaucratic, siloed, and ineffective. Hiving off offenders into the arms of private and voluntary groups would, so the theory goes, reduce demand on the state, duplication of services and improve outcomes.

However, the simplicity of the new government’s current proposals has two potential drawbacks (although more detailed proposals in a forthcoming sentencing and rehabilitation green paper may take account of these). First, the lack of emphasis on reforming the public sector first of all raises the possibility of wasting public money and belies the complicated practicalities of delivering on the ground. Secondly, a focus on private and voluntary providers merely masks the underlying structural problems in the public sector. The reality is that the services required by offenders are currently largely provided by the state. Public sector provision ‐ such as housing, job training, education and skills, addiction treatment, mental healthcare and social services – will still exist even if a payment by results mechanism is introduced. Offenders will still be entitled to public services; the budgets of those public services will not decrease simply because reducing reoffending is now someone else’s responsibility. As these services are largely being provided by the state, there could be a situation whereby private providers are using public money to commission services back from the public sector. In effect, this means that the state is paying twice and, as illustrated above, unless the measurement of success is robust, the state could be spending twice for outcomes that have not actually improved. A more fundamental critique of an exclusive focus on private and voluntary providers is that it does not address the urgent need to reform the public sector too. Superimposing a payment mechanism over the top of existing, fragmented public sector structures will not actually fix the fragmentation, but merely disguise it – and possibly drive up costs rather than reduce them. A true solution to reducing reoffending will seek to actually fix the fragmentation and build on the expertise that is already there. The truth is that both integrated offender management developments and proposals for payment by results are two sides of the reoffending coin, but so far, no attempt has been made to fuse the best aspects of the two approaches.

A New Vision So far this report has described the failure of a monolithic agency in Whitehall to impose a system of case management from the centre onto very different prisons and probation systems. It has also outlined how regional commissioning structures are failing to deliver efficiencies, drive innovation, or engage partners at a local level. In addition, competition – which would deliver innovation and significant efficiencies ‐ has not yet been entrenched across the system and as a result, costs have not been driven down and the private and voluntary sectors are locked out. It cannot be said with any certainty what the effect on reoffending has been, but a new approach is clearly required if the government’s promised ‘rehabilitation revolution’ is to be made a reality. This report’s fundamental criticism of NOMS is that reform has been too prescriptive and centrally‐ directed – prioritising process ahead of incentives and blunting the ingenuity and enthusiasm of the

public, private and voluntary sectors. It has also ignored the fact that services outside of the criminal justice system need to be key partners in reducing reoffending. Recent developments to better integrate services and introduce new payment mechanisms for success look promising but are, in their current form, likely to fall short – and new thinking is needed to transform the way the rehabilitation and resettlement needs of offenders are prioritised, structured and delivered. The following section makes some firm recommendations about the immediate direction of government policy – including the mixing of the best aspects of integrated services and financial incentivisation. It also puts forward some ideas about what these changes might bring about for the future, in an era in which demands on the criminal justice system are rising, the public spending environment is austere and existing levels of service need to be transformed in order to deliver more for less. These ideas will be developed in a further report by Policy Exchange, to be published in 2011. Local commissioning Recommendation: The Ministry of Justice should abolish the regional structure of NOMS and encourage local commissioning structures. The evidence put forward in this report suggests that the location of the commissioning function for reducing reoffending needs to be much more local. This is where cooperation with non‐criminal justice agencies can best be achieved. For this reason, it is recommended that the regional structure of NOMS, which costs around £30 million a year, is abolished. Money will certainly be saved, although it might be decided that some form of slimmed‐down regional line management should remain. The question of where exactly local commissioning for reducing reoffending should sit is important. It is clear that a purchaser provider split is required, and there are different ideas about exactly who should provide each role. As will be indicated below, it is not necessary to be overly‐prescriptive about the ideal model at this stage. Accountability is also important. If in the future there are dozens, or even hundreds of different governance arrangements and different teams operating around the country, they must be accountable to someone, and it is surely not feasible for ministers to play this role. One option might be for the role of Police and Crime Commissioners (due to be elected in 2012) to expand to cover wider criminal justice matters, including crime reduction and hence reducing reoffending. Another might be for local authorities to assume a commissioning role (of which more details below). A third option would be for probation trusts to play the primary commissioning role. However, as our previous analysis illustrated, these trusts are very immature as commissioning bodies and have so far performed poorly – failing to design and purchase services intelligently and with organisations other than the probation service.

Budget devolution Recommendation: The Ministry of Justice should experiment with approaches to devolving the budgets for custody, community and other funding streams to a more local level. This should include both hard budgets and ‘shadow budgets’. In a previous report, Policy Exchange has recommend that the budgets for youth custody should be devolved to local authorities to incentivise them to devote more resources to the prevention of crime, the resettlement of prisoners and the reduction of reoffending.47 At the moment, local authorities gain financially when offenders go to prison – no longer having to provide services such as housing – meaning youth custody effectively acts as respite care for local authorities. Arguably, the same disincentive to keep people out of prison exists in the adult estate too. One way of reversing this and to incentivise agencies to contribute to the reducing reoffending agenda would be to devolve ‘shadow budgets’. These would be indicative and would allow local agencies to reap the rewards of fewer community and prison sentences. The potential upside of this model is that agencies would also be penalised for failing to reduce reoffending because if the number of prison receptions from the area rose, the agencies would have to reimburse the Ministry of Justice. Experiments with shadow budgets should only be the first step towards exploring the devolution of real budgets. One of the arguments against devolving hard budgets is that the geography of the prison estate makes it difficult for budgets to be held anywhere other than by central government (i.e. because prisons are not located where the offenders are ‐ or in this example, where the commissioners are). However, a more imaginative approach could in the future see the creation of a virtual network of prison places, where the issue of geography is bypassed and local areas actually spot‐purchase places in the prison estate in real‐time. The eventual devolution of real budgets would drive service reconfiguration. For instance, if a local commissioner held the budgets for custody, community and other agencies were also contributing portions of their budgets to reducing reoffending, this might result in the creation of one‐stop‐shops, with services to aid rehabilitation located at the court (as with the community courts in the United States and the North Liverpool Community Justice Centre). Financial incentives Recommendation: The Ministry of Justice should design mechanisms which offer direct financial incentives for the reduction of reoffending. In addition to introducing indirect financial incentives for reducing reoffending through budget devolution, there may be scope for complementing this lever with a direct incentive.

Chambers M, Arrested Development: Reducing the number of young people in custody while reducing crime, May 2009

In a forthcoming report, Policy Exchange will look in depth at the difficult issues of outcomes, measurement, time periods, differential pricing models and causation. However, deciding who is paid by results and how is just as vital. There are a number of potential models. One option is to run large contracts with private and voluntary sector providers, in the way that the Conservative Manifesto and Coalition Agreement indicated. These contracts may be signed by the Ministry of Justice with single providers who would sub‐contract to smaller providers, or as with the Peterborough pilot, the Department could contract with consortia of providers. These would operate in a similar way to the welfare‐to‐work contracts designed by the Department for Work and Pensions. Contracts such as these could be paid for centrally by the Ministry of Justice. Given that savings to the criminal justice system would theoretically accrue from a reduced prison population, the Department could model how many prison receptions and sentences might be avoided from a specified reduction in reoffending. As a result, a decision about future capital spending and the prison estate could be taken; if five prisons could be closed or the building of five future prisons avoided, this money could then be used to finance the contracts on an invest‐to‐save basis. However, we have already outlined the potential drawbacks of superimposing such a model over existing structures. There are other models which may be viable – ones which include the public sector as well as private and voluntary sectors. The ideal incentive model would incentivise the public sector to change practices and integrate their services – but with concrete financial benefits in return. One option could be a ‘gain‐share’ model. This would involve the public sector being able to share in the benefits of reduced reoffending and criminal justice costs with the Ministry of Justice. For example, the Department could similarly identify likely future prison savings and pay a shared bonus to agencies which contributed resources and personnel to a specified reoffending outcome. This might involve partners from the local level coming together and making the Ministry of Justice an offer based on what might be achievable in a locality: if reoffending is reduced by x% over a certain time period, saving £x, the savings could be shared between the Department and the other parties. There is another model which may be preferable even to all of the above. With the right financial incentives, the fusing of the best parts of the concepts of integrated offender management and payment by results might be possible. Financial incentives to reduce reoffending could be introduced by the Department and a mix of public sector professionals could come together with private providers, the voluntary sector and social enterprises to form a Public‐Private Partnership, or a ‘Reducing Reoffending Mutual’. Public sector workers – social workers, mental health workers, police, probation and addiction specialists ‐ with expertise in reducing reoffending ‐ could unite from across the range of services, while the private and voluntary sector could bring their own expertise to bear. This approach could inspire the most innovative approaches. These mutuals or cooperatives could provide ‘wraparound’ services for

their clients, provided over many years, with financial rewards if and when certain key milestones have been achieved. Discussions with private and voluntary sector providers indicate that among their many ideas for new service provision would be new ‘halfway houses’ to help resettle prisoners, wide‐scale use of ex‐ offenders as mentors and 24‐hour key worker support during key transitional periods at the end of a sentence. Making this kind of provision possible, while aligning incentives for public sector workers, could begin to transform the criminal justice system. Many of the approaches described above would be huge departures from past practice in efforts to reduce reoffending. In fact, many of the payment mechanisms and the wraparound services provided as a result would be world‐firsts. For this reason – and the fact that there are so many possible models and different methods of commissioning – we recommend that the government runs a series of pilots, all with varying aims, timescales and other components. These pilots might focus on different kinds of sentences, i.e. one pilot for community sentences, one for short sentenced‐prisoners and one for longer‐term prisoners. Service reconfiguration Recommendation: The government should experiment with different cross‐departmental approaches to commissioning which have a wider focus than reducing reoffending. Combining a system which is locally‐based and provides financial incentives for agencies to come together and work together would be a significant step forward for the criminal justice system. But the real prize in terms of outcomes and reducing the burden on taxpayers is much greater ‐ and the ultimate aim of such a system should be to transform and reconfigure service delivery as a whole. A relatively small number of individuals make up a significant portion of many departments’ and local agencies’ budgets, and individuals who commit crime again and again undoubtedly make up a significant portion of this group. For instance, a Total Place pilot in Luton and Central Bedfordshire estimated that the most prolific 250 persistent offenders could be costing taxpayers as much as £112 million a year.48 The suggestion (made above) of sharing the financial benefits of reduced crime with public sector agencies would not, in itself, fix the fragmentation or siloed nature of service delivery which creates so much waste, duplication and inefficiency. The way the public sector is set up at the moment makes it almost impossible to provide coherence for these high‐cost users. For example, siloed agencies are unable to sequence supportive interventions – one agency might be spending money to help an offender get a job while he/she is still using alcohol heavily or under a curfew order from the courts. Clearly, better sequencing of interventions would be more efficient and improve outcomes.

Total Place, Final Report of Luton and Central Bedfordshire, 2009

So long as high‐cost offenders are no‐one’s responsibility, they become everybody’s responsibility. The key question for policymakers is whether services should be redesigned at a local level around these highest cost individuals, or whether to create the structures and incentives to facilitate a truly holistic approach for them, involving personal budgets, discrete from traditional public service delivery. This would involve top‐slicing the budgets of local agencies and transferring them to a third party who would coordinate and commission services as required, in a more efficient, coherent way. In this model, as with some of the models above, changing the structure comes first, which is how the service re‐design is fostered. Part of the equation to achieving service re‐design may involve the contracting out of certain bespoke functions of the state in certain local areas, on a pilot basis (e.g. a cluster of prisons and a probation trust). Commissioning experiments such as this would create market pressures to drive performance improvements, better tailoring to customer needs, and diversity of supply in other areas of government activity. In addition, pilots would also help to create a more competitive system and allow new providers in to the market. Measurement and audit Recommendation: The government must reform the reoffending measure and facilitate robust audits of multi‐agency spending on offenders. The Ministry of Justice should examine the relationship this report has found between the reconviction rate and the caution rate. There is a strong argument that cautions should be included in the measure of reoffending so that the impact of police practices can be properly accounted for. The reforms mooted above all hinge upon there being a reliable measure of recidivism. Without this, the reducing reoffending agenda may be dangerously susceptible to changes in police practice, which would distort outcomes and mean that the goal ‐ of reduced crime and reduced costs ‐ will ultimately fail to be realised. All of the above ideas depend on good data: without a good knowledge of how money is currently spent, it will be impossible to persuade other local agencies to pool budgets and cooperate. Unless spending is mapped, inefficiency and duplication cannot be identified. Until cost‐benefit analysis takes place, the most promising approaches to reducing reoffending and its associated costs will not be identified and learned from. In terms of the commercial opportunity for reducing reoffending, one of the key roles for the private sector might be to provide these audits (perhaps on a pro bono basis) at a local level – making the case to local agencies and the Ministry of Justice that there are better ways to spend their money. This might provide some of the impetus that the government’s promised ‘rehabilitation revolution’ requires.

research note November 2010

November 2010

Acknowledgements Policy Exchange would like to thank the Hadley Trust for its generous support for this project. Thanks should also go to all those who spoke with the author as part of the research.

The work of the Crime and Justice Unit at Policy Exchange For more information on the work of the Crime and Justice Unit, please contact Blair Gibbs, Head of the Crime and Justice Unit blair.gibbs@policyexchange.org.uk

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