Officers say public are in danger – so why won’t MoJ publish its safety test?

Article updated: See below

Before the killing, he already had a history of domestic violence. Back in the day, before the Ministry of Justice (MoJ) separated out the probation service into multiple units to prepare them for privatisation, he would have been allocated to a trained officer. But under the chaotic new system, he was put under the supervision of a trainee probation officer. Home visits were supposed to have been undertaken every four months, but this didn't happen. In the end, he murdered his partner and then took his own life.

That was one of the stories told by probation staff to lawyers representing the National Association of Probation Officers (Napo) after they asked for evidence of dangers in the MoJ's new system. There are many more.

People don't really have a clear idea of what probation is. They are much more worked up by the privatisation of forests or mail services than they are about the supervision of those who have committed a crime. But when forests are privatised, we lose somewhere to take a walk. When probation is privatised, people die.

The problem with Chris Grayling's probation policy is very common to privatisation, regardless of the sector. The first thing which happens is you atomise the service. What was once one organisation with clear lines of communication is sliced up into multiple bodies, where responsibility is unclear and information is not shared efficiently.
Grayling cut the probation service in two, keeping high-risk offenders with the still publicly-owned National Probation Service and handing low-and-medium-risk offenders to various 'Community Rehabilitation Companies'. These were then given a bit of time to bed-in until they are sold off to private firms to run.

The problem is people are not units in an Excel spreadsheet. They are complex beings, who migrate from low to medium to high risk and back again without regard for a probation officer's formal responsibilities or the commercial contracts handed out by the MoJ. Officers do not have easy access to information about the people under their care. 

Cases passed up to the national service from the rehabilitation companies are sometimes not taken, or left to sit there for a while. Overwork in both the companies and the service has led to dangerous cases being missed.

A legal warning sent to Treasury solicitors by lawyers acting for Napo lays out the evidence for their concerns. Lawyers had gone to Napo's annual general meeting and asked members about their personal experiences. What follows is what probation officers themselves thought the splitting-up of the service had done, in their personal experience. It's not perfect data. By virtue of being Napo members, officers are likely to be extremely critical of the privatisation plan. But we do not have any other evidence. The MoJ refuses to publish its own safety evaluations.

Staff in the rehabilitation companies say they are dangerously overworked, with their targets being significantly ratcheted up. One officer was mistakenly allocated three high risk cases. She says she was already overworked, so the arduous process of reallocating them prevented her devoting sufficient time to an offender convicted of serious assault in a pub. The offender has since been charged with murder committed while under the supervision of the rehabilitation company.

Another officer says they were so overworked they could not dedicate sufficient time to a female offender who was being bullied by her partner. She was found dead from a drugs overdose, with an investigation ongoing as to whether it was deliberate or accidental.

An offender convicted of child cruelty was assessed by staff at a rehabilitation company to be high risk, but the probation service rejected the transfer request. Rehabilitation company staff have therefore been left with it, even though the offender downplays the abuse and has now entered a relationship with a partner who has two children under the age of 16. Staff believe the children are at an unacceptable risk of harm.

Overwork at the probation service means oral reports are often given to courts instead of standard reports. Officers believe this leads to inadequate risk assessments. One offender with a history of domestic violence had threatened a 13-year-old child with a samurai sword. Following an oral report they were sentenced to a community order. Ten days later they broke into their partner's home and held her underwater with a bike chain. 

And then there are the more minor cases, stemming from lack of information about the offender. A female rehabilitation company staff member was unable to access the risk assessment of an offender she was required to interview. If she had done, she would have known it was unsafe for a single female officer to be alone with him. During the meeting he took out his penis and started masturbating in front of her.

Another delivering a cognitive-behavioural programme aimed at reducing violence also found they were unable to access offender records. They ended up with two rival gang members in the same building at the same time.

Or there are the flashes of danger and violence which come from top-down ministerial initiatives imposing themselves on delicate real world situations. One probation service officer was asked to accompany another officer to her first meeting with an offender who had been reallocated to her. The offender had made good progress, but was aggrieved at being reallocated and became very aggressive. The probation service officer, who had been in the service for six years, said it was the single most dangerous incident he had faced in that time.

Napo feels the current system is unsafe for staff, offenders and the public. Rigorous safety tests are therefore needed before the contracts are signed and it is made permanent. The MoJ says it has conducted safety tests. But it refuses to make them public.

It did not conduct a full pilot. Instead it froze the system post-break-up but pre-sell-off and treated that as a pilot. It says it has built in "a process of ongoing rigorous testing". The MoJ insisted it would not enter into a binding contract unless Grayling was "satisfied that he had sufficient evidence that it is safe to do so". But it's not prepared to release information on what basis he's making that decision. We are being asked to trust him.

The MoJ refused a freedom of information request on the safety tests, saying it would be prejudicial to the effective conduct of public affairs.

In an act of almost Kafkaesque logical contortion, the MoJ criticised lawyers for failing to provide evidence of the deficiencies, the very nature and content of which they refuse to disclose. This is what forced lawyers to start gathering evidence from probation officers themselves. They've now sent the evidence above, together with many other cases, to Grayling. They ask that he considers it. If he thinks there are risks to be assessed, he should explain how he will do so. If not, he should say on what evidence he bases this view.

Failure to do so means Naop will pursue a judicial review, just days after the Lords prevented Grayling from effectively getting rid of the legal mechanism. One wonders why he took such dislike to it.

Lawyers are also threatening Grayling with a private law duty in his duty of care to probation staff, who they say are being put needlessly at risk by the break-up.

This is now down to the wire. The Treasury solicitors, who deal with these sorts of letters, had until 16:00 last Friday to reply to the letter. They did so at 16:05, asking for another two days. The new deadline is today at 16:00. But there are rumours that the sell-off of the companies may also be announced today. We've been expecting it since last month.

There is an easy out for Grayling here. Lawyers say they will give more time if he undertakes not to sign contracts on the rehabilitation companies until 21 days after he provides a "substantive response" to the evidence provided by Napo. As a basic standard of ensuring public safety, that should not be an arduous undertaking to give. But the suspicion remains that, as with other privatisations, it is ideology, not facts on the ground, which are driving the policy.

Update 18:03

A Ministry of Justice spokesperson said:

"To paint a picture of systematic failure is scaremongering and simply not true – public protection is, and will always remain, a top priority.

"Our crucial reforms are being rolled out in a measured way, with thorough testing at every stage.

"Each year there are more than half a millions crimes committed by those who have broken the law before. Living with the status quo just means accepting more crime and more victims, and that is not acceptable."