Investing in ‘Toughness’: Probation, Enforcement and Legitimacy

Investing in ‘Toughness’: Probation,Enforcement and Legitimacy

GWEN ROBINSON and PAMELA UGWUDIKEGwen Robinson is Reader in Criminal Justice, University of Sheffield;

Pamela Ugwudike is Lecturer in Criminology, Swansea University

Abstract: This article examines the rise in prominence of ‘enforcement’ as a key aspect ofthe work of the probation service in England and Wales, and assesses the extent to whichprobation’s ‘enforcement turn’ can be said to have enhanced the legitimacy of the Service.With reference to research on the effects of the toughening up of enforcement policies onboth offenders and staff, this article argues that the equation of ‘toughness’ and ‘legiti-macy’ in the probation context is deeply problematic. The article concludes that we mayhave reached a ‘tipping point’ with regard to enforcement and its reputational signifi-cance for the probation service, and that a more responsive and flexible approach towardsthe enforcement of community sanctions may be emerging.

Keywords: probation; enforcement; legitimacy; community sanctions; profes-sional discretion; compliance; breach

In England and Wales, the enforcement of community sanctions has in thelast decade or so become one of the key priorities of the National ProbationService – perhaps the key priority, if the Service’s own ‘strapline’ (enforce-ment, rehabilitation and public protection) is anything to go by.1 In the com-munity sanctions context, enforcement consists of a series of writtenwarnings issued by probation staff which can culminate in breach proceed-ings: that is, returning the offender to court, where further sanctions canbe imposed or resentencing can occur. Although enforcement has alwaysbeen part of the probation officer’s role (Raynor and Vanstone 2007), it isonly relatively recently that it has come to assume significance in respect ofhow the Service’s performance is evaluated and, indeed, how the Servicerepresents itself to its stakeholders. In this article we analyse the causes andsome of the consequences of what might be described as probation’s‘punitive turn’, with particular reference to the compliance of both offend-ers and staff with increasingly inflexible rules. We argue that there aregrounds to suspect that the toughening of probation’s approach towardsenforcement has not had the desired ‘legitimating’ effect, and that it is timefor a serious reconsideration of probation’s approach towards both theenforcement of community orders and licences, and the ground in whichit stakes its reputation.

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The Howard Journal Vol 51 No 3. July 2012 DOI: 10.1111/j.1468-2311.2012.00707.xISSN 0265-5527, pp. 300–316

300© 2012 The AuthorsThe Howard Journal of Criminal Justice © 2012 The Howard League and Blackwell Publishing LtdPublished by Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK

Problematising Enforcement: Probation in the 1990s

Although enforcement has always been part of the role of the probationofficer, research conducted prior to the 1990s showed that it was neither akey, nor a consistent, aspect of practice, although the advent of communityservice in the 1970s – a disposal with an explicitly punitive rationale – sawa growing emphasis on enforcement (see Ellis, Hedderman and Mortimer1996). Indeed, community service work was the first area of probationpractice to attract official guidance, in the form of National Standardsset by the Home Office, spelling out an enforcement policy to be appliednationally (Home Office 1989). The growing salience of enforcement inprobation policy is explicable with reference to a number of ‘penal cur-rents’ which affected the Service during the 1990s. The first of these wasthe changes brought about by the Criminal Justice Act 1991, which ren-dered all of the orders supervised by the probation service ‘communitysentences’, to be understood as part of a continuum of punishment withcustody at one extreme and fines and discharges at the other. Although the1991 Act was founded on good intentions centred on the promotion ofnon-custodial penalties, it also placed an obligation on the new communitysentences to demonstrate their punitive credentials as never before, and itwas in this context that enforcing offenders’ compliance with communitypenalties took on new significance. National Standards for the supervisionof offenders in the community, published in the wake of the Act (HomeOffice 1992) included the first national guidance on how, and in whatcircumstances, enforcement action was to be initiated, in respect of boththe new community penalties and post-custodial licences involving statu-tory supervision.

The second significant development to have a bearing on the issue ofenforcement was the well-documented ‘punitive turn’ in British penalpolitics, which took hold in the middle part of the decade (for example,Newburn 2007; Garland 2001). In this context the probation service facedalmost constant criticism for being too soft and closely aligned with theinterests and needs of offenders, and emerging evidence that its approachto enforcement was far from rigorous or consistent seemed to confirm its‘soft’ image (Ellis, Hedderman and Mortimer 1996). Inconsistent and ‘lax’enforcement was not just a problem for those who wished to see a lesstolerant stance toward offenders on the part of the probation service; butit also signalled (to some) an unruly and ‘unmanaged’ workforce operatingagainst the grain of national policy. In a criminal justice system comingincreasingly under the kosh of managerial control, evidence that practi-tioners were stubbornly clinging to their ‘professional discretion’ was, tosay the least, deeply unpopular.

Recognising the need to bolster the Service’s external legitimacy – thatis, its credibility in the eyes of powerful stakeholders like sentencers,politicians and the public – senior managers within the Service sawenforcement as a crucial area of practice to ‘get right’, and quickly. In1999, senior managers within the Service (in the form of the now defunctAssociation of Chief Officers of Probation (ACOP)) decided to take the bull

The Howard Journal Vol 51 No 3. July 2012ISSN 0265-5527, pp. 300–316

301© 2012 The Authors

The Howard Journal of Criminal Justice © 2012 The Howard League and Blackwell Publishing Ltd

by the horns, and commissioned a series of audits of enforcement practiceaimed at bringing practice into line with policy – by then set out in revisedNational Standards published in 1995 (Home Office 1995; Heddermanand Hough 2004). It was, arguably, at this point that senior managerswithin the Service appropriated enforcement as a key ‘legitimation strategy’:a means through which to communicate probation’s preparedness todeliver penalties with a genuine ‘penal bite’ and, at the same time, todemonstrate an appropriately ‘disciplined’ workforce. Enforcement thuscame to signify an important cultural transformation and became key toprobation’s claim to legitimacy in the late 1990s and into a new century.

Toughening up Probation: Towards A New Choreography

It was in this context that the probation service, formerly a relativelyindependent collection of 54 area services, metamorphosed into theNational Probation Service, and a clear opportunity for senior managersto articulate their acceptance of the government’s enforcement agendapresented itself in the publication of a three-year strategic plan penned bythe Service’s first national director, Eithne Wallis. This key document was(appropriately) entitled A New Choreography and it announced that of allthe Service’s key performance indicators for 2001 to 2004, enforcementwould carry the most weight (National Probation Service/Home Office2001).

However, the ‘enforcement goalposts’ had by this time shifted. In 2000,revised National Standards were published which sought to furthertighten up probation’s response to non-compliance by requiring breachaction on, or after, a second (rather than, as previously, a third) unaccept-able failure to comply with an order in any twelve-month period. Inother words, ‘three strikes’ became, from 2000, ‘two strikes’2 (Home Office2000). Meanwhile, the Criminal Justice and Court Services Act 2000 hadgiven sentencers tougher powers in relation to breach cases. Together,these legal and policy developments meant an intensification of proba-tion’s powers in respect of enforcement, coupled with the likelihood ofmore punitive outcomes for those offenders caught in the larger, andnewly thinned, ‘mesh’ of the non-compliance ‘net’ (Cohen 1985). How,then, did the Service’s new director seek to ‘sell’ to the Service’s staff astrategic plan which put ‘tough’ enforcement centre-stage?

In A New Choreography, Wallis stressed the legitimation function ofenforcement in no uncertain terms:

The confidence of ministers and the public in the NPS is critically dependent on theextent to which staff are enforcing the terms and conditions of statutory orders and licences.This goes to the heart of proper punishment and the rule of law by upholding theauthority of the courts and Parole Board in their sentencing and early releasedecisions. (National Probation Service/Home Office 2001, p.29, italics added)

Here we see the unambiguous equation of enforcement and politicallegitimacy: that is, legitimacy in the eyes of powerful external stakeholders


302© 2012 The AuthorsThe Howard Journal of Criminal Justice © 2012 The Howard League and Blackwell Publishing Ltd

– politicians, the public and sentencers. This message was reinforced by anexplicit characterisation of the Service’s central ‘mission’ as ‘law enforce-ment’: delivering the punishments deemed appropriate by legitimatedecision-making bodies. Staff were, thus, being told that, whether we like itor not, delivering punishment is our business. That this would be a bitter pill forsome to swallow was, however, acknowledged elsewhere in the report,in the form of the statement that: ‘Sometimes . . . I shall be leading theService against the grain of its past history and traditions’ (National Pro-bation Service/Home Office 2001, p.5). Indeed, Wallis went so far as to saythat: ‘Nothing short of deep-rooted culture change in the organisation candeliver [the necessary] reforms and outcomes’ (p.5).

There were in A New Choreography, however, also several notableattempts to ‘sell’ more robust enforcement policies with reference to other– perhaps more palatable – arguments pertaining to the effectiveness ofprobation work and more popular narratives of rehabilitation and publicprotection. For example:

when offenders are not maintaining contact, probation programmes can make noimpact on their offending behaviour, nor can the Probation Service add to publicprotection. (p.29)

Here the instrumental, rather than normative, value of ‘tough’ enforce-ment was highlighted: enforcement was equated with ‘effective practice’and, thereby, as being consistent with the broader ‘what works’ agendawhich was, at that time, another major element of probation’s strategyto relegitimate its work (Robinson 2001; Robinson and McNeill 2004).Elsewhere in the report:

Through the rigorous enforcement of community sentences . . . [probation staff]will bring offenders to understand that [deviant] behaviour is unacceptable andthat it will not go unpunished. (p.5)

Again, the instrumental value of rigorous enforcement (and puni-tive outcomes for non-compliance) was stressed: by communicating tooffenders a clear message centred on intolerance of ‘deviance’, a deter-rent effect was predicted. This equation of tough enforcement, externallegitimacy and improved rates of compliance was repeated over thenext few years in a number of official documents (for example, Officefor Criminal Justice Reform 2004; HM Inspectorate of Probation,HM Inspectorate of Courts Administration and HM Inspectorate ofConstabulary 2007).

Thinking about Enforcement and Compliance

In this section we consider the impact(s) of the more rigorous approach toenforcement promoted in A New Choreography (and reflected in policy andlegislative changes at that time) in terms of the compliance of both offend-ers and probation staff. To what extent and in what ways did these changes




impact on the behaviour of offenders, and on those charged with policyimplementation – that is, practitioners and their managers? Let us beginwith the former.

Offenders: Deterring Non-compliance?We concluded the previous section by noting the assumed deterrenteffect of increasingly rigorous enforcement practice on offenders. As anumber of commentators have noted in recent years, changes in respectof probation’s enforcement policy and practice over the last decade ormore have been founded on a model of offenders as rational actors or‘amoral calculators’: individuals whose behaviour can be straightfor-wardly influenced by the introduction of incentives and disincentives (inthe case of enforcement, the latter). It is assumed that, by leaving offend-ers in no doubt that non-compliant behaviour will be met with enforce-ment action, they will be less inclined to engage in such behaviour andcorrespondingly more likely to be ‘pre-emptively’ compliant. Unfortu-nately however, the notion of enforcement as an effective deterrent is,at best, problematic. It has been argued that offenders are relativelyimmune to the deterrent effects of formal sanctions, which is often whythey are subject to community sanctions in the first place (for example,Hearnden and Millie 2004; Hedderman and Hough 2000, 2004). Thisargument is supported by the finding that people with a stake in con-formity are the most likely to respond to deterrent strategies, as well asevidence that people (including offenders) do not necessarily comply forpurely instrumental reasons (Bottoms 2001).

What, then, can we say about the impact of probation’s ‘enforcementturn’ on offenders’ compliance with community sanctions? Perhaps theshort answer is that the available data do not support the assumptionthat swifter and surer enforcement drives up rates of compliance. Indeed,the opposite seems to be true. Home Office data on breach rates show,unequivocally, that in the last 10–15 years, breach has become an increas-ingly common experience for offenders subject to community sanctions.Between 1994 and 2004, the annual proportion of offenders servingcommunity sentences who were breached doubled from 18% to 37%(Home Office 2005). For ‘standard’ orders entailing supervision withoutadditional conditions3 the rise was even more dramatic: 31% in 2004compared with 10% a decade earlier (Home Office 2005). Whilst it is notknown whether increasing breach rates reflect real increases in non-compliant behaviour or merely a stricter approach to enforcement (that is,the tendency to catch more individuals as the non-compliance ‘net’ growsbigger), what is known is that these changes in breach rates are notattributable to growing proportions of higher-risk offenders in probationcaseloads in the relevant period: indeed, the opposite trend has beennoted (Morgan 2003). We can further add that similar increases in breachrates have not been found in neighbouring jurisdictions: for example,in Scotland breach rates have remained relatively stable for a number ofyears (for example, Scottish Executive 2007, pp.14–15). And as far as we



can say anything about the relationship between enforcement policiesand longer-term compliance (that is, desistance), the studies that haveexplored the possible links between ‘tough’ enforcement and desistancehave produced mixed findings. Although Home Office research indicates(albeit tentatively) that taking appropriate enforcement action can increasethe likelihood of desistance (May and Wadwell 2001), other evidencesuggests that ‘tough’ enforcement can produce higher rates of reconviction(Hearnden and Millie 2003). In an analysis of the data generated from theACOP audits of enforcement practices referred to above, Hearnden andMillie (2003) found limited evidence of a link between ‘tough’ enforcementand reduced reconviction rates. They observed that: ‘offenders eitherdisregard or are oblivious to strict probation enforcement strategies’(Hearnden and Millie 2004, pp.54–5).

Although there are no national data available on breach rates after 2004(because these are no longer published),4 there are indications that theyhave remained stubbornly high (for example, National Audit Office 2008).In the light of these data, it is difficult to make a convincing case for adeterrent effect. It is, in fact, possible that tougher enforcement may havedriven up rates of non-compliance among offenders subject to communitysanctions, rather than achieving the opposite. We can entertain this pos-sibility with reference to a body of theory and research which indicatesthat perceptions of rigidity and ‘regulatory unreasonableness’ can alienateregulatees and increase (rather than reduce) the likelihood of futurenon-compliance (for example, Sherman 2003; Sherman, Strang andWoods 2003; Digard 2010). Put another way, when primary or initialnon-compliance is met with a response on the part of the authority (in thiscase the probation service) which is perceived as unjust or unfair, second-ary non-compliance may follow (cf. Lemert 1967). For this reason, regu-latory scholars have warned that where legal authorities and regulatorsare interested in securing compliance, they should aim to protect theirreputation as a ‘legitimate authority’: that is, one which treats peoplereasonably and fairly (Murphy 2005; cf. Tyler 1990).

Probation Staff: Creative Compliance?It is interesting to note that in A New Choreography offenders are not theonly group constructed and understood as rational actors or ‘amoralcalculators’: so, too, are probation managers – albeit that for them incen-tives (in the form of extra resources) rather than disincentives to compli-ance were promised (National Probation Service/Home Office 2001, p.29).The extent to which such incentives ‘worked’ in any direct sense is notknown. We do know (from the findings of the ACOP audits) that signifi-cant improvements in practitioners’ compliance with enforcement policieswere achieved in a remarkably short space of time (Hedderman andHough 2004). However, a more recent audit of inter-agency enforcementpractice revealed the tendency of some probation areas to artificiallyinflate enforcement figures by counting final warning letters as enforce-ment action only to subsequently rescind them. This tendency to artifi-




cially inflate enforcement figures was motivated by perverse incentives ofperformance-related resource allocation (HM Inspectorate of Probation,HM Inspectorate of Courts Administration and HM Inspectorate of Con-stabulary 2007). This sort of practice is an example of creative compliance(McBarnet 2003): that is, technically complying with rules or standards(usually to avoid penalties) whilst not necessarily being committed to the‘spirit’ behind those rules or standards. This finding does not depict aunanimous commitment to the culture of enforcement promoted at policylevel among senior management.

Nonetheless, it is likely that in the last decade, considerable pressurehas been brought to bear on individual practitioners on the part of middleand senior managers who, themselves, have been under pressure to meetperformance targets set by the government. But it is also theoreticallypossible that high rates of compliance with enforcement policies on thepart of practitioners are indicative of an acceptance of the legitimacy of‘tough’ enforcement regimes. Could it be that practitioners have beeneffectively persuaded of the merits of tough enforcement, to the extentthat they comply with policy for normative reasons? (Bottoms 2001). Inother words, have practitioners ‘bought in’ to tough enforcement as alegitimate aspect of practice?

In seeking to answer this question, it must be noted that no large-scaleresearch on enforcement practice has been conducted since the mid-1990s’ study by Ellis, Hedderman and Mortimer (1996). We do, however,know that in the following years the professional training of probationofficers was separated from social work training, and that the new trainingprovision has been assumed to produce more compliant practitioners (forexample, see Treadwell 2006; Annison, Eadie and Knight 2008; Deering2010). This would appear to ‘fit’ with performance data pertaining tocompliance with National Standards, noted above. The few studies thathave examined the micro-contexts of probation practice do, however, castdoubt on the notion that recent developments in enforcement policy haveproduced a monolithic culture of enforcement. Indeed, a recent qualita-tive study conducted by one of us (Ugwudike 2008) revealed substantialdeviation from official policies and guidance governing enforcement,which we suggest could be read as an indication that ‘tough’ and prescrip-tive enforcement policies suffer from a legitimacy deficit at the frontline(Beetham 1991).

The study set out to examine the relevance of several ‘compliancemechanisms’ (Bottoms 2001) in the context of community sentences andthe present article focuses on the aspect of the study that explored front-line enforcement practice. Thus, we draw here on data generated fromqualitative semi-structured interviews with 19 probation officers (twelvefemale and seven male) in Wales. In several respects, the characteristics ofthe officers included in the study are broadly representative of the nationalaverage. For instance, the officers’ workloads, average length of serviceand also, the greater representation of female officers – described as the‘feminisation of the workforce’ (Worrall and Hoy 2005) – are consistentwith the national population of probation officers.5



The average length of service reported by the officers was just overeight years. It follows, therefore, that most of the officers were trainedunder the training arrangements that were introduced in 1997/98 forprobation officers in England and Wales – training arrangements designedto reflect contemporary policy imperatives, including tough enforce-ment practice (see also, Deering 2010). The probation officers’ views aboutenforcement policy and practice were examined. The officers also dis-cussed their views about the impact and effectiveness of enforcementpolicy. Therefore, the interviews yielded rich textual data on the impact ofpolicy developments on frontline enforcement practice.

The study utilised grounded theory methodology and theoretical sam-pling techniques (Strauss and Corbin 1998). Probation officers of varyingdemographic attributes such as age, gender and length of service wereselected on the basis of their ability to contribute insights that could beused to develop or saturate the concepts that emerged from three stages ofdata analysis. The sampling technique employed by the study limits thestatistical generalisability of the study’s findings. Nevertheless, the studyaimed to develop useful insights into an under-researched, yet important,aspect of frontline practice. Prior to this study, little was known aboutprobation practitioners’ views of the impact of different enforcementmodels (including deterrent enforcement). The study set out to addressthis gap in knowledge.

Let us turn now to the key findings of the study in relation to enforce-ment practice. It is interesting to note that when permission was soughtfrom senior managers to interview staff about their enforcement practice,the researcher was told in no uncertain terms that there was no longerroom for the exercise of discretion in this area, and that she would findpractice to be thoroughly standardised, in line with policy set out inNational Standards. However, in interview, practitioners revealed that theuse of discretion was key to their implementation of formal enforcementpolicies which were perceived by most of the participating practitioners asoverly rigid, and potentially at odds with professional experience, valuesand objectives. Despite apparently high levels of compliance with policies,then, compliance was not underpinned by ‘normative’ mechanisms(Bottoms 2001) which would indicate genuine ‘buy-in’ to a regime centredon toughness. So, whilst practitioners said that they would issue warningletters and commence breach action in response to the requisite sequenceof ‘failures to comply’ on the part of their supervisees, they also found waysto exercise professional discretion in the process. They were able to usetheir discretion in the context of everyday constructions of offenders’compliance: namely, decisions about when to define a ‘failure to comply’(which usually meant a failure to attend a scheduled appointment) as‘acceptable’ or ‘unacceptable’.6 Even when an offender’s behaviour hadbeen defined as ‘unacceptable’ and a warning letter had been issued, orbreach action initiated, it became clear that there was flexibility within thesystem to rescind such action retrospectively in the event that an offenderwas able to supply a ‘reasonable’ excuse, and this was done regularly.However, discretion was not used lightly. When discussing the exercise of




discretion in enforcement processes, interviewees were keen to stress theprofessional defensibility of the various discretionary strategies deployed,which stemmed from norms and values they held dear. As one practitionerexplained:

I think if you’re doing a job that questions your own personal values and principlesit would get to a point where I would say ‘look I can’t do this anymore’. So you needthat leeway to draw on your own experience. Because it’s all about dealing withpeople and we talk about diversity with different people but there’s diversity withinone person because one person could be one person one day and one the nextdepending on you know circumstances, environment, their emotions. And youhave to adapt to how that person is on that day. And that’s where you need yourpersonal professional discretion to be able to assist that person or whether to decideto enforce . . . There’s a lot to take into account but this job has a lot of account-ability and this is again where the justifiable decisions come in. And I think if you’reusing personal professional discretion you then have to be able to show that it wasdone for the right reasons.

For this interviewee and several others, the ‘right reasons’ for exercisingdiscretion centred on an acknowledgement of diversity within thecaseload, which was thought to favour an individualised, rather than astandardised or inflexible, response. In describing the utility of the indi-vidualised enforcement approach, several interviewees talked about theimportance of understanding the individual circumstances behind anoffender’s failure to comply and responding accordingly. Practitioners, itseemed, were motivated by pragmatic and altruistic considerations. Froma pragmatic perspective, they were keen to address potential obstacles tocompliance in order to ensure that more offenders were able to success-fully complete their orders. Altruistic considerations centred on enablingoffenders to access and benefit from rehabilitative resources which wouldbe more difficult to achieve in the event of the premature termination ofsupervision.

Knowledge of individuals was repeatedly stressed as being at the heartof decision making:

We know people and we are professionals . . . We know people who are not com-pliant and people who have missed for genuine reasons . . . You do learn who’s notcomplying, who’s trying to pull the wool over your eyes or stuff like that. You doknow the people you work with.

We . . . obviously give more leeway than we should. If I stuck to: ‘if you’re not herewithin 15 minutes you get two warnings’, you won’t get much of a caseload. We just,everybody is quite, everybody knows individual cases.

As the above quotations suggest, practitioners indicated an implicit aware-ness and acknowledgement of the differential ‘motivational postures’ ofoffenders, such that behind the same non-compliant behaviour may liesomeone who is blatantly ‘playing the system’ or else an individual whosegood intentions are undone by difficult circumstances (Braithwaite 2003;Robinson and McNeill 2008; Canton 2008).



The importance of building good working relationships with offendersfounded on respect and fairness was also stressed by some interviewees. Inthe extract below, a practitioner describes his own approach to enforce-ment with these values in mind:

I say to people straight on at the beginning: you know what you’ve got to do;you’ve got to keep your appointment but if there’s a genuine reason then I’ll lookat it and stuff. So I try and come across as a human person, not this machine, youknow? That’s how you deal with people: if you treat them with respect all the time,you get respect back. If you’re gonna be this sort of robotic probation officer, thenI think you’re gonna be breaching a lot of people. People who’ve been through thesystem right from school: ‘you will do this, you will do that’, and they fight againstthat. But it depends how you deal with people. I’ve worked with people in the pastin other areas who’ve been really strict and not liked at all by anyone. So I thinkit’s about respect really. You respect people and they respect you back. That’s howit works.

In the above quotation we see hints of an awareness of the problemsthat can arise when enforcement officials and their ‘rules’ are perceivednegatively by individuals who are subject to them (as discussed above). Forthis practitioner, a mechanistic approach to enforcement is both morallyproblematic and likely to be ineffective in the sense of encouraging com-pliance. This is, of course, entirely in line with the conclusion of researchby Tyler and others that procedural fairness, more so than desirableoutcomes, is key to individuals’ perceptions of legitimacy, and significantlycorrelated with future compliant behaviour (for example, Tyler 1990; seealso McNeill and Robinson forthcoming). For the majority of those inter-viewed, legitimacy in enforcement practice was not to be found in thestandardised or inflexible application of ‘rules’ to undifferentiated sub-jects and ‘amoral calculators’; but rather in practice underpinned byvalues and experience regarded as professionally defensible. There waslimited ‘buy in’ to the sanctioning/deterrence model of enforcementset out in policy documents, in favour of a model bearing many of thehallmarks of ‘responsive regulation’ – an essentially flexible approachwhich uses discretion to decide ‘when to punish and when to persuade’(Ayres and Braithwaite 1992).

Indeed, this model, which was favoured by the majority of the officersinterviewed, also incorporated a more flexible compliance-orientedapproach to supervision. This approach can be differentiated from therigid application of deterrent enforcement rules, in that it is moreconcerned with facilitating compliance, thereby reducing the resort toenforcement. Strategies such as offering telephone reminders, reimburs-ing transportation costs and making home visits to alleviate transporta-tion and childcare problems, are some examples of the discretionarycompliance-oriented strategies that were adopted by several practitioners.For example:

I have used the home visits one, yeah. For people who find it very difficult to comein I’ll say: ‘if you come in four times I’ll come round and once every fifth appoint-ment I’ll come out’ and you know generally that would work.




Yes there are few people we actually call to remind . . . We don’t ring many of themto remind them but if absolutely necessary we will, especially if they’ve got otherissues going on in their lives as well.

The foregoing also suggests that the application of compliance-orientedstrategies appeared to be rooted in ‘responsive regulation’ ideals; usingtheir professional discretion, several officers interviewed made profes-sional judgments about the suitability of each individual case for a moreflexible compliance-oriented strategy.

Tough Enforcement and External Legitimacy ina Changing Penal Climate

Let us return now to the national picture. What have been the key con-sequences of the ‘enforcement turn’ in probation; and to what extent havethese had the desired legitimating effect? We have already presentednational data on breach rates, which show a significant increase in rates ofbreach for all types of community orders in the decade leading up to 2004,after which data ceased to be published. Making sense of these data inrelation to the Service’s external legitimacy is not, however, a straightfor-ward matter: they can be read as evidence of success, or of failure. Muchdepends on how we understand the overarching objectives at stake.

On the one hand, high rates of breach could be viewed as reflecting wellon the probation service, demonstrating its punitive credentials and theimproved compliance of its workforce. That the Service did attract somepraise in this regard is evident in a handful of studies of sentencers’ viewsshortly after the establishment of the National Probation Service (forexample, Hough, Jacobson and Millie 2003). But other interpretations arealso possible. Where ambitions are higher, and include objectives likeoffender engagement and behavioural change, high breach rates will beread rather differently: that is, as an indication that the Service and its staffare unable to manage effectively, or ‘hold on to’, the offenders in theircharge. There are also important contextual issues to consider. Enforce-ment is time-consuming and incurs considerable economic costs. Moreenforcement activity thus equals more costs: not just to the probationservice (in preparing and prosecuting breach cases) but also in court timeand in terms of implementing the decisions of the courts which, thanks tolegislative interventions over the past few years, have become increasinglyresource-intensive.7 A system with infinite criminal justice resources maywell be indifferent to such costs; a system with a chronically high prisonpopulation looking for economic savings may well take a rather differentview.

A cause for particular concern of late has been the contribution ofbreach and recall processes to a spiralling prison population which islargely acknowledged to be out of control. According to the Ministry ofJustice, ‘enforcement outcomes’ are one of the two main factors8 whichhave contributed to the 66% increase in the prison population between



1995 and 2009 (Ministry of Justice 2009). Indeed, Ministry of Justice dataindicate a staggering 470% increase in the numbers of offenders impris-oned for breaches of community-based sentences between 1995 and 2009;whilst in the same period, the rise in the population of offenders recalledto prison whilst on licence has been 37-fold (Ministry of Justice 2009).9

With these data in mind it is, perhaps, not surprising that enforcementaction on the part of the National Probation Service has in the last fewyears begun to attract criticism for being overly defensive, risk averse andinflexible (for example, Prison Reform Trust 2005; Padfield and Maruna2006; House of Commons Justice Committee 2008).

Indeed, we may have reached a ‘tipping point’ with regard to enforce-ment and its reputational significance for the probation service. Arguablythe first evidence of this came in the form of a probation circular issued in2004, which announced both that ‘Ministers want a rapid improvement in[offenders’] compliance levels’ and a new ‘compliance target’ for proba-tion, which was set alongside existing enforcement targets (Home Office2004). Two years later, a Home Office consultation paper mooted the ideaof a quasi-judicial role for offender managers in dealing with non-compliance (Home Office 2006b). Subsequently, revised National Stand-ards published in 2007 (which are still current at the time of writing) havesomewhat relaxed the rules that previously sought to limit the exercise ofpractitioners’ discretion to determine when enforcement action is war-ranted. The 2007 Standards specify that practitioners should make a judg-ment about the validity of any excuse provided by the offender for anyapparent failure to comply, and this should ‘take account of the nature ofthe failure, the circumstances of it and the circumstances of the offender’(Ministry of Justice 2007, s. 2f.4). This stands in marked contrast to theposition just three years earlier, when staff were instructed to treat allfailures to comply as ‘unacceptable’ unless the offender was able to proveotherwise (Home Office 2004).10 In 2008, the Labour Government’sresponse to the House of Commons Justice Committee’s report (which hadargued for more flexibility in breach processes), whilst continuing to insistthat ‘unacceptable failures to comply must be dealt with firmly’, alsoindicated support for an approach which concentrates on compliance(Ministry of Justice 2008, para. 42). So as the Labour Government reachedthe end of its final term, ambiguities remained about the legitimacy ofprofessional discretion in the enforcement process, but the image of thetough, inflexible enforcer appeared to be gradually receding, in favour ofan image of the ‘responsive regulator’, charged with exercising discretionappropriately and professionally in the pursuit of compliance.

The ‘responsive regulator’ also features prominently in the coalitiongovernment’s recent Green Paper, Breaking the Cycle. Here, the relegitima-tion of discretion at the frontline is linked with the government’s statedintention to refocus on ‘results’ – that is, reductions in reoffending andultimately costs – and to rid the penal system of ‘a top-down approach[that] has concentrated on process’ (Ministry of Justice 2010b, para. 13).Throughout, the Green Paper promises greater freedom for frontlineprofessionals to decide how they will manage individual offenders, and for




the future ‘providers’ of offender management services to ‘innovate’ asthey see fit, with a view to unleashing the ‘full power of community ordersto break the cycle of offending’ (para. 200). The Green Paper thus appearsto herald a significant break with the tradition of tight centralised controlsover professional practice which were set in train by the last ConservativeGovernment. It does not, however, signal a break from the language of‘toughness’: indeed, community sentences, it is argued, must be ‘robustand demanding . . . tougher and more intensive’ (para. 31). That theremay be tensions between increasing discretion on the one hand, andincreasing ‘toughness’ on the other, is a matter on which the Green Paperis notably silent.

Conclusions

As a strategy designed to bolster the legitimacy of the probation serviceand the sanctions it is charged with managing, the toughening of itsstance in respect of enforcement has, arguably, failed to deliver. For atleast a proportion of the workforce, the ‘formal rules’ governing enforce-ment have been found to be in conflict with notions of legitimate pro-fessional practice which favour a more ‘responsive’ style of regulationand, as such, probation’s toughened approach to enforcement has failedto secure wholesale ‘buy-in’ on the part of those responsible for imple-mentation. The toughening of probation’s approach to enforcement hasalso failed to deliver effectiveness in the sense of deterring non-compliance. Indeed, the opposite has occurred: increasing proportions ofoffenders are experiencing breach at least once in the course of theirorder or licence. Meanwhile, shifting political priorities have renderedhigh rates of breach extremely ‘bad news’ – for probation, for the crimi-nal justice system, and for politicians looking for cheaper ways of dis-pensing punishment.

In the last handful of years, it seems that enforcement has ceased to bea ‘solution’ to probation’s ‘reputational deficit’, and has, instead, come tobe understood as a new source of problems. We have, arguably, entered aphase of pragmatism in which thinking about enforcement is shifting toaccommodate certain empirical realities. Where the probation service was,a decade ago, prepared to stake its reputation on its ability to ‘toughen up’its approach to enforcement, it is now increasingly facing criticism fordoing so. Increasingly, the Service’s performance is being judged withreference to its ability to secure offenders’ compliance with orders andlicences without resort to legal proceedings which can be both expensiveand ineffective. In this climate, probation’s ‘penal bite’ has lost some of itsappeal, and steps are being taken to revive the legitimacy of professionaldiscretion in the enforcement process.

All of this presents the probation service with some considerable chal-lenges. For one thing, we currently know little about the extent to whichcontemporary practitioners have a theoretical understanding of themechanisms underpinning compliant behaviour or the skills and strategieswhich are likely to increase compliance (Bottoms 2001; Robinson and



McNeill 2008). Nor do we know the extent to which practitioners have thetraining, the skills, the confidence and the support to exercise discretion inthe enforcement process – although it is likely that the results of a pilot‘professional judgment’ project in Surrey and Sussex Probation Trust,which commenced in June 2010, will shed much-needed light on thisissue (Ministry of Justice 2010b, para. 202). These are particularly im-portant questions at a time when probation training is on the cusp ofanother overhaul (Burke 2010); when the Service is likely to be managingever-expanding caseloads with diminishing resources; and when compe-tition from private- and third-sector providers to deliver frontline servicesis set to intensify in the context of the coalition government’s ‘paymentby results’ model (Ministry of Justice 2010b, ch. 3). If probation is to moveon from a decade of investing in toughness, and remain an attractive andcompetitive provider of frontline services, it will need to confront some keyquestions about the values and purposes in which it is prepared to stake itsreputation in the next decade and beyond.

Notes

1 This ‘strapline’, we believe, first appeared on the front cover of the strategy docu-ment A New Choreography (National Probation Service/Home Office 2001) and couldbe found subsequently on the web pages of the National Probation Service. Unfor-tunately, the National Probation Service website is no longer active.

2 There was no change in respect of the enforcement of post-custodial licences.3 Formerly probation orders; subsequently (until the enactment of the Criminal Justice

Act 2003) community rehabilitation orders.4 Breach data were withdrawn from publication ‘due to concerns over data quality’

(Home Office 2006a, p.52). Since then Offender Management Caseload Statistics includedata on reasons for terminations of community orders, but these are not equivalentto (and are an underestimate of) breach rates.

5 In 2009, women represented 71% of staff in the probation service (Ministry of Justice2010a).

6 At the time the research was conducted, enforcement policy included guidance toprobation areas which stated that all absences ‘should be regarded as unacceptableunless proved otherwise’ (Home Office 2004).

7 The National Audit Office (2008) estimates that the cost of a breach case ranges froman average of £50 (uncontested cases) to £320 (contested cases). The 2003 Actsignificantly reduced sentencers’ discretion to use ‘admonishing’ rather than puni-tive powers when faced with breach. Sentencers can amend the order in such a wayas to render it more onerous; or they can revoke the order and resentence theoffender, possibly with a custodial sentence of up to six months (even where theoriginal offence was not punishable by imprisonment) (Schedule 8, para. 9). Theycan no longer respond by: taking no action (that is, allowing an order to continueunaltered); issuing a warning; or imposing a fine – all formerly commonly usedoptions (Home Office 2005).

8 The other (principal) factor is ‘tougher sentencing’.9 These increases amount to an additional 800 and 5,300 prisoners for breaches and

recalls in the relevant period respectively (Ministry of Justice 2009).10 The 2007 Standards also include an entirely new section entitled ‘The Offender’s

Experience’, which sets out the offender’s ‘legitimate expectations’ of the NationalProbation Service. This includes the statement that offenders should ‘experiencetheir relationships with staff as being characterised by the encouragement of com-pliance and cooperation’ (s. 3.6).




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Documents

Investing in ‘Toughness’: Probation, Enforcement and Legitimacy