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Placing Secure Schools on Unsecure Footing: The Case Against Privatisation

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About The Author

Hannah Gilliland (Guest Contributor)

Hannah is a Politics and Sociology graduate from the University of Cambridge. She enjoys looking at the intersection between politics, current affairs and the law. She has completed various Mini-Pupillages and is looking forward to beginning her legal career.

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That which we want less of in society should rarely be privatized and that which we want more of often should be.

William MacGregor Robson

The Youth Justice System has seemingly made impressive progress in recent years. According to the Charlie Taylor Report published in 2016, first time entrants to the Youth Justice System fell by 82% between 2007 and 2015. In the same time period the number of children prosecuted at court fell by 69%. However, crucial problems still remain. The annual cost to commit a single young offender to a youth offender institute is an estimated £75,000 and, once released, 69% of these young offenders will commit another crime within the year.

These, and other related issues, inspired the redesign of the system as outlined in the Charlie Taylor Report. At the centre of this was the proposal to introduce ‘Secure Schools’: smaller custodial environments for youths in which education is prioritised. This proposal demonstrates a clear step in the right direction for the treatment of young offenders.

However, the decision to outsource Secure Schools to private providers (as described in a recent Government Press Release) is demonstrative of a worrying trend towards privatising our criminal justice system. This article will firstly consider the benefits of providing an education centric youth justice system, before considering the problems with the proposed method of achieving this goal.

Attitudes Towards Young Offenders

Attitudes towards the treatment of young offenders have oscillated over the years. Although they are perhaps more nuanced in reality, it is possible to roughly divide these attitudes into two opposing views: the ‘Do Less’ approach and the ‘Interventionist’ approach.

The ‘Do Less’ approach is supported by the work of Terrie Moffitt on the ‘age-crime curve’. It suggests the majority of young offenders are ‘adolescent-limited’ and will to a large extent naturally desist from crime without intervention. Research on the Scottish youth system by Lesley McAra and Susan McVie supports minimum intervention and proposes that maximum diversion is preferable to avoid stigmatization of young offenders.  

The ‘Interventionist’ approach, on the other hand, argues that young offenders require intervention to ensure and enable their long-term cessation of offending. This stance is supported by Lawrence Kohlberg’s work on the stages of moral development. It suggests that young adults are still malleable in their moral reasoning, and thus effective intervention can be used to shape a young offender’s decisions.

Parliament has clearly adopted the Interventionist approach – based on views of crime and punishment, it believes some element of censure is needed for all crime. Intervention can take the form of conflict resolution (restorative justice is being used in some areas of the youth justice system), or the form of young offender institutions and secure training centres, in which 900 youths were remanded in 2016.

The Need for Change

Both the Do Less approach and the Interventionist approach have led to concerns about the future impact a young offender will have once released. However, evidence indicates that the current system has yet to effectively create a system that minimises the risk of re-offending through addressing these youths’ underlying root issues. Of the youths in custody, research from Barnardo’s has found that around half have been in Local Authority care at some time in their life, approximately one in four have a learning difficulty, and one third have a mental health disorder. As the Charlie Taylor Report explained:

Though children’s backgrounds should not be used as an excuse for their behaviour, it is clear that the failure of education, health, social care and other agencies to tackle these problems have contributed to their presence in the youth justice system.

The importance of providing a youth justice system that caters for the needs of these young people must not be underestimated. The benefits of placing education at the heart of this system are large, particularly with regards to the increased influence of desistance. Many of the young offenders entering these institutions have spent large periods of their lives away from education and research shows that only half of the 15-17 year olds within Young Offender Institutions have the numeracy or literacy levels expected of a child aged 7-11 in the UK. Therefore, to ensure successful desistance upon release, it is imperative that these offenders have the qualifications necessary to enable them to work outside of prison. Education is thus vital for young offenders, as emphasised by the Charlie Taylor Report:

If children are busy during the day, undertaking activity that is meaningful and that will help them to succeed in life, whether it be studying for exams, learning a trade or playing sport or music, they are much less likely to offend.

Secure Schools can enable education to be a formative part of the prison experience for young offenders, and can therefore contribute to decreasing the likelihood of re-offending.

Secure Schools and Creeping Privatisation

While there is indication that the government understands the benefits of providing Secure Schools, they have looked to external resources for the school’s development. On 1 June 2018, the government published its ‘Secure Schools: How to Apply Guide’, inviting private institutions to apply to provide these secure schools. This demonstrates that the government is committed to outsourcing these proposed new Secure Schools to the private sector.

The continued privatisation of the criminal justice system is damaging in three main ways: firstly, it threatens the legitimacy of our legal system; secondly, it provides unnecessary risks for the public, prisoners and prison staff; and thirdly, it invites a cost-cutting focus that is at odds with the rehabilitative focus needed for the youth justice system.

The Legitimacy of the Legal System

The legitimacy of the legal system is threatened by the continued privatisation of it. Admittedly, the government legally has the power to outsource the provision of prison services under Section 80 to Section 88 (inclusive) of the Criminal Justice Act 1991. However, when the responsibility of imprisonment is outsourced to private bodies its legitimacy can still be questioned - especially when there is limited accountability.

In a democratic system the public elects representatives to create and ensure the enforcement of laws. These representatives must remain transparent and accountable to that same public. However, by over utilising the private sector to enact government responsibilities, the public is further separated from those that they elect. This leads to less transparency and less accountability, as governments can pass the blame of any failures onto the private entity. 

Initially the privatisation of prisons appeared to function well. As Richard Harding notes that an effectively regulated private prison could be justified, as they were held to account by the private sector’s own standards and the state’s regulation. A distinction was made between the ‘allocation’ of punishment by the courts and the ‘administration’ by prisons. This distinction was able to be maintained due to a state-funded on-site controller present in the private prisons to ensure proper and effective functioning. However, in more recent years the on-site controller has come from the private sector, leading to even less accountability of the prisons to government.  

Furthermore, more decisions are being made by the private prisons alone, such as location of imprisonment and prisoner’s privileges; this blurs the distinction between ‘allocation’ and ‘administration’. When the private sector takes on increasing control of the punishment aspect of the law, accountability and transparency of the legal system diminishes, and the legitimacy of the legal system as a whole also decreases. Therefore, if Secure Schools continue down the same route, it is imperative they are correctly regulated by the state to ensure the legitimacy of their practices to the public.

Public Risks

By outsourcing Secure Schools to the private sector we are increasing the risks associated with enforcing punishment, such as the increased risk of threatened safety to the youths, the staff and the public. The cost-cutting nature of the private sector has already produced worrying trends within the privatised areas of our criminal justice system. In 2014, probation trusts were divided into the National Probation Service and 21 privately run Community Rehabilitation Companies (CRCs). It was found that within these CRCs some officers were dealing with over 200 cases, at odds with official advice recommending a maximum of 60 parole cases that could be safely handled.

The decision to open up parole to private companies was condemned as ‘putting public at risk’ in a 2017 HM Inspectorate report. The report also stated that the government had miscalculated revenues to be made by private companies taking on the probation service, and as a result the CRCs had to cut services and staff, in order to ensure that they could still operate profitably.  Cost-cutting measures also resulted in ‘Remote offender monitoring’ in which convicts were monitored by telephone with no way of checking who was on the other end of the phone.

The results of this have been catastrophic. Since 2014 the number of reoffenders of a serious further offence while on probation rose from 429 to 517, a rise of around 20%. These risks are damning and it is therefore worrying to consider that the youth justice system could soon be heading in the same direction. The fact that we are dealing with youths arguably makes the risks associated with privatisation even more alarming. Caution again must be advised: the government needs to ensure the figures they provide to private companies are accurate and realistic, so hidden costs do not arise.

A similar situation has also been seen in the privatisation of prisons: the cost-cutting motive of the private sector means there are incentives to reduce staff numbers and training. The reduced number of staff coupled with a lack of training can lead to a higher risk of prison disturbance. Indeed, the National Audit Office has raised concerns over the number of inexperienced staff in private prisons and the safety implications that result. The safety of staff is also being compromised: in the year up to December 2017, assaults on staff rose by 23%. It is important to remember that a deprivation of liberty still entitles prisoners to safety and decency and yet the contrast between seeking profit and seeking justice is threatening to compromise these standards. 

Profit v Justice

This contrast between seeking profit and seeking justice is alarming because the rehabilitative focus required to look after young offenders does not coherently fit with the profit-maximising motive of the private sector. It is well known that one method to increase profits is to cut costs. However, when it comes to the justice system these cost-cutting practices can have dangerous results, as discussed immediately above.

Furthermore, Secure Schools that are placing education at their centre will require spending on areas often considered ‘non-essential’, such as pastoral care. Typically, it is these ‘non-essential’ areas that are the first to be cut in the name of profit. In order for Secure Schools to provide their full benefits to society it is vital that they are correctly regulated, to ensure they are in line not only with other Secure Schools, but also with schools and the education system within the whole of the UK. Given the natural tendency of private companies to want to maximise profits, we may need to ask to what extent this is actually possible.

Conclusion

The youth justice system in England and Wales is currently at a turning point.  While the decision to place education at the centre of a reformed system is to be applauded, it is also vital to proceed into continued privatisation with caution.

Although privatisation can bring lower costs for the tax payer as the costs will be fronted by the operating companies, it also threatens to undermine the legitimacy of the entire legal system and fail to meet the goals of the criminal justice system. Going forward, it is vital that Secure Schools are correctly regulated, so that all young offenders are given the treatment they need to enable lifetime desistance from crime.

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Tagged: Criminal Law, Justice, Policing

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