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Abstract

The criminological literature affirms that the flexibility of probation officers is a very important aspect and highly valued by the community users' population and, in fact, is an important element that stands out in good-quality supervision in the community. However, flexibility remains an abstract concept and varies according to different jurisdictions. Moreover, there is little literature on what it means in theory and in practice to be flexible, how it is understood by professionals and how it is understood by users. This article reviews the literature on flexibility and discretion by differentiating between two frequently related concepts. It takes the example of Catalonia and England and Wales and the respective research in which the authors have been involved to examine what is meant by flexibility, conceptually and in practice. To do so, they analyse the experiences of both professionals and the user population in both jurisdictions through an intersectional perspective focused mainly on gender. Finally, evidence-based implications are presented.

Keywords

Community supervision discretion flexibility intersectional perspective probation system

Introduction

Flexibility appears to be a crucial ingredient of good-quality community supervision. Supervisees value its presence, and its absence is identified as leading to the breakdown of supervision; supervisors identify it as an element of best practice. However, flexibility is inherently an abstract concept, understood differently in different contexts and from varying perspectives. Specific groups of supervisees (e.g. women) may require specific expressions of flexibility. Community supervision calls for contrasting types of flexibility: for example, about the timing and frequency of appointments, about the mode, content and sequencing of sessions and about the structure of court orders and licences.

Flexibility overlaps with ideas like discretion and professional judgement and is bound up with concepts like power and trust. Community supervision that is flexible responds to the circumstances of the supervisee and fits well with the evidence base for probation supervision.

This article is about the role of flexibility in community supervision. The importance of flexibility emerges consistently in the literature about qualities and behaviours that supervisees value in their supervisors (Annison et al., 2018; Barnett, 2012; Barr, 2019; Covington and Bloom, 2006; Dominey, 2015; McIvor, 2007; Morash, 2010; Sapouna et al., 2015; Vasilescu, 2021, 2022). However, there is much less in the literature about what flexibility means conceptually and practically, how it links with other related ideas and what implications a focus on flexibility has for policy and practice. This article starts to address these gaps.

The article begins by examining existing literature about discretion and flexibility in supervision, arguing that while the two concepts are linked, they are not the same. It then introduces the probation systems in England and Wales (E&W) and Catalonia, before drawing on empirical evidence from these two jurisdictions to illustrate flexibility in practice. The article analyses the experience of probation service users and probation practitioners in both jurisdictions through a gender and intersectional lens. It concludes with the implications for policy and practice that flow from this analysis.

Flexibility and discretion for good-quality probation practice

Our definition of flexible probation practice is a practice that avoids fixed and rigid patterns of supervision and can be shaped by the circumstances and needs of the supervisee. Flexibility is often associated with practical aspects of supervision: times of appointments, location of appointments, a willingness to rearrange appointments at short notice and the use of options like the telephone in place of some face-to-face meetings. Supervisors who work in a flexible way are arguably using their professional discretion and drawing on the principles of responsivity and desistance-focused practice (Barr, 2019). There are overlaps between practice that is flexible and practice that is individualised. Individualisation is a prominent concept in discussions about good-quality rehabilitative work. Its importance is identified in the European Probation Rules (Council of Europe, 2010) and often linked with the shaping of the content of programmes to fit the individual service user (e.g. see Montero and Garcia (2016) for discussion of scientific individualisation in the Spanish context). The focus of this article is not on the content of interventions but rather on how and with what flexibility supervision is practised.

There are clear links, but also important differences, between the concepts of flexibility and discretion. In particular, discretion in criminal justice is often understood as the scope that practitioners have to make decisions in particular cases. Discretion is shaped and constrained by laws, rules, standards and guidelines. By contrast, flexibility is about the way that practitioners approach their work. Even in cases with limited discretion, the practitioner can be flexible, and conversely, a practitioner faced with a range of options can still be inflexible. Flexibility and discretion raise different questions. Where discretion asks ‘How much leeway do I have for my response in this case?’ flexibility asks ‘How responsive do I choose to be?’.

There is considerable literature about the role of discretion in criminal justice practice and, more generally, in the delivery of public services (Brodkin, 2011, 2019; Evans, 2020; Gelsthorpe and Padfield, 2003; Hawkins, 1992; Lipsky, 1980, 2010; Zacka, 2017). The essays in Hawkins (1992) explore the way that contrasting perspectives from legal theory and social science have shaped conceptual understandings of discretion. Lacey’s (1992) contribution argues that both perspectives are necessary and that discretion plays a part in achieving both substantive and procedural justice.

In the criminal justice system, practitioner discretion is argued to be essential, as no two cases are the same, but equally in need of constraining to avoid unjust disparity in decision-making. Judicial discretion is seen as necessary for justice in sentencing, although it often has a disproportionately negative impact on certain groups (e.g. in Spain, immigrants have a higher chance of being imprisoned than Spanish citizens (López-Riba et al., 2023)). In E&W, the police have discretion to divert individuals from prosecution to out-of-court disposals, bringing concerns about outcomes that discriminate against disadvantaged groups (including Black young people, see Robin-D’Cruz and Whitehead, 2021). Inappropriate use of discretion is implicated in police stop and search practices that disproportionately impact migrants of Latin American heritage and Black and minority ethnic citizens (Medina Ariza, 2014 in UK; López-Riba, 2019 in Spain; Bradford and Loader, 2016).

Lipsky (2010) influentially wrote about the way that front-line practitioners use discretion to make sense of their jobs and deal with the demands made on them. He pointed to the wide-ranging discretion of the street-level bureaucrat, stemming from unclear policy that does not make sense on the ground, objectives that tend to be ambiguous and conflicting and a lack of resources to enable the expected tasks. Zacka (2017) draws on these ideas, again arguing that the widespread use of front-line discretion arises because workers at the bottom of organisational hierarchies interacting directly with clients must make practical sense of fuzzy rules and procedures.

Brodkin (2011, 2019) argues that caseworkers will select the action that (from their perspective) is less costly and more rewarding. Practitioners calculate how to manage a mixture of day-to-day work stress and policies, management targets and incentives. Brodkin is concerned that discretion is misused not as an act of resistance to organisational principles but as a smokescreen to disguise inadequate resources and manage impossible work demands. She identifies patterns in the use of discretion that include delivering the legal minimum service and providing a one-size-fits-all service that stereotypes and pigeon-holes recipients.

Discretion and the use of professional judgement take different forms in different types of public service. Evans (2020) differentiates three types of street-level organisations: administrative, regulatory and human services/professional. He argues that, in each of these organisational types, practitioners have different ways of using discretion to comply (or not) with policy directions. For example, administrative staff dealing with tax and benefits regimes use discretion in a different way from doctors and lawyers, whose work is governed by systems of professional qualifications and standards that exist separately from organisational bureaucracies.

In Evans’s model, the work of probation practitioners appears to fall somewhere between the regulatory and human services/professional categories, with practice regulated by organisational guidance but intended to be able to respond to the particular needs and circumstances of the service user. Much of the discussion about the use of discretion in probation practice has focused on the impact of increasingly prescribed ways of working on the scope for individual practitioners to make decisions in particular cases. The possibility of using discretion is linked with professionalisation in probation work and is seen to be at odds with standardised approaches to practice (Dominey and Canton, 2022).

Probation practitioners work within a framework set by law and policy; they do not have the discretion to shape a supervision programme entirely as they see fit. However, they do have the flexibility to respond to the circumstances of the service user within the guidance set by their employing organisation. Supervisors may have limited choice about the requirements of the community sentence, the number of appointments that they offer or the sanctions that follow a breakdown in supervision, but they can be flexible about when and how appointments are made, how readily appointments can be rescheduled and how they understand failures to attend appointments.

Flexibility is a practical concept and a way of doing; it brings together how practitioners act with the way that they relate to the people they supervise. Liebling and Price (2003) draw on their research with prison officers to argue that the skilful use of discretion (and particularly the appropriate under-use of power) is a key aspect of ‘right’ decision-making in prisons. The focus of this article is not so much on decision-making in probation (e.g. about the content of programmes and the enforcement of sanctions) but about the ways that practitioners choose to shape supervision and the justifications that they offer for doing this differently for different people.

Flexibility is a relational concept; it is exercised in the interaction between the individuals involved and is shaped by the level of understanding and degree of sensitivity existing in that relationship. Research repeatedly suggests that a good-quality supervisory relationship is important for many valuable probation outcomes, including compliance (Ugwudike, 2010), legitimacy (McNeill and Robinson, 2013), reductions in reoffending (Porporino, 2010) and support through the process of desistance (Weaver et al., 2023). Flexibility is also a dynamic concept, with the degree of flexibility in the supervisory relationship varying over time. Flexibility may be easier for supervisors to offer to supervisees they know well, but it equally provides a means of building trust in the supervisory process (Armstrong, 2014; Revolving Doors, 2022).

This article makes the case that the exercise of flexibility is one ingredient of a successful supervisory relationship. It does this by drawing on existing research conducted in Catalonia and in England, considering the experience of individuals on the receiving end of probation practice (both flexible and inflexible) and the practitioners who supervise them. Before turning to this research, it is helpful to introduce the context for community supervision in these two jurisdictions.

The legal and policy framework for probation in the two jurisdictions

The particular histories, legal frameworks and practice cultures in Catalonia and E&W create different patterns of discretion and shed light on the way that flexibility emerges as a key aspect of probation work.

In Catalonia, the implementation of community sentences is shaped by the overall Spanish legal context but reflects the specific features of the Catalonian jurisdiction. In Catalonia, the probation service is under the direction of the Department of Justice of the Catalan Autonomous Government. As Blay Gil and Larrauri (2016) explain, Spain and Catalonia are different contexts with different professional practices and cultures.¹

Community sanctions in Catalonia were introduced in 1995 following changes to the Spanish Criminal Code (Organic Law 10/1995/, of 23 November, of the Criminal Code). These sanctions included unpaid work and suspended prison sentences with requirements supervised by probation officers. Before this legislative change, non-custodial sentences in Spain had not had explicitly rehabilitative intentions. The use of the new more rehabilitative sentences began slowly. However, since the beginning of the 21st century and as a result of reforms to the Criminal Code in areas including gender-based violence and road traffic offences, the use of community sentences with rehabilitative elements has increased rapidly. The non-profit organisations² that are contracted to deliver probation services have, as a result, faced periods of excessive workload demand (Blay Gil and Larrauri, 2016).

Probation in E&W traces its roots back more than 100 years. Supervision in the community by a probation officer is the oldest type of intervention, with additional forms of community sanction being introduced more recently (e.g. community service – now renamed and somewhat reimagined as unpaid work (Carr and Neimantas, 2023) – in 1973 and curfews monitored by electronic tags in the late 1990s). Rehabilitation has always been one of the explicit aims of probation but in response to changes in the political and policy landscape, rehabilitation has competed with concepts such as punishment, risk management and public protection as a probation priority (Canton and Dominey, 2018). The administration of probation in E&W has been subject to waves of reorganisation over the past 20 years. Currently, the Probation Service is part of His Majesty’s Prison and Probation Service (HMPPS), a public-sector body under the direction of the Ministry of Justice.³

The feminisation of probation work (McCulloch et al., 2020; Tidmarsh, 2023) is evident in both jurisdictions. In Catalonia, more than half of the probation officers are Spanish women with training in criminology, psychology, social work and law. In E&W, front-line probation staff are either qualified probation officers (who have completed the professional qualification in probation – a specific university-level training course in probation work) or probation service officers (PSOs) who do not have this qualification but receive on-the-job training and tend to work with service users assessed as less risky.

There are many similarities between the day-to-day work of probation staff in Catalonia and their colleagues in E&W. Staff meet with service users to provide support and help, monitor risk and reduce future offending. Catalonian probation officers have only recently begun to supervise people who have been released from prison having been sentenced for serious crimes (e.g. probation is now mandatory in cases of sex offending and terrorism). The fact that new groups of service users, some likely to pose greater risks of harm, are being added to the supervision population increases the similarity between probation in the two jurisdictions.

Probation officer discretion is exercised in a framework shaped by law and policy. In E&W, National Standards, laid down by HMPPS, set expectations about matters like the frequency of appointments and the required timescale for dealing with potential breaches of order requirements. The intensity of supervision (in terms of frequency and length of appointments) depends on the extent to which the service user is deemed to pose a risk to the public. Supervisors who want to depart from the National Standards (e.g. to decide not to take breach action) must obtain the approval of their manager.

Probation supervisors in Catalonia are required to have a minimum of three interviews (initial, follow-up and final) with each service user. The content and the frequency of the interviews depend on the needs and problems of supervisees, the community sentence they are serving and sometimes on their recidivism risk (for more detail see Vasilescu, 2021: 4). Another important point is that flexibility is a normative concept that appears in Spanish regulation regarding community service orders (840/2011 Royal Decree) in article 6.2 of Chapter II. The following instruction is for supervisors:

The execution of this sentence shall be governed by a principle of flexibility in order to make compatible, as far as possible, the normal development of the daily activities of the offender person with the fulfilment of the sentence imposed.

The day-to-day practice of Catalan supervisors (e.g. decisions following non-compliance, changes to the content of community service orders and the details of written reports) is overseen by the team coordinator.

In both jurisdictions, probation staff have limited discretion to vary the requirements of the community sanction. In Catalonia, practitioners are able to apply to the court to change the type of the community order (i.e. to move between therapeutic, training, unpaid work or mixed options). Catalonian judges are sentencing the overwhelming majority of the time without pre-sentence reports and with little knowledge of the service user’s needs and circumstances, increasing the likelihood of post-sentence amendments (Larrauri, 2012a, 2012b). In E&W, probation staff must also apply to the sentencing court to vary the requirements of a community sentence.

High workloads and large caseloads are an issue in both jurisdictions. Concerns are voiced in E&W by practitioners and by the independent organisation responsible for probation inspection (HM Inspectorate of Probation (HMIP), 2023). Probation workers are unhappy about the amount of time that they spend on tasks that take them away from face-to-face work with service users. In Catalonia, probation officers complain about caseload size, and, in particular, those who work in specialist unpaid work teams (who are responsible for finding work placements for service users) see themselves as facing an increasing number of management tasks and perceive these as obstacles to carrying out more rehabilitative and relational work (Vasilescu, 2022).

In summary, Catalonia and E&W have notably different legal and policy frameworks shaping the delivery of community sanctions. The histories and organisation of community supervision vary too. In Catalonia, practitioners operate within a legal framework that sets flexibility as a normative obligation, while in E&W the importance of working with service users in a responsive and individualised way is stressed in policy documents (HMPPS, 2021). The two jurisdictions have community sanctions with contrasting shapes and content: the balance between unpaid work, therapeutic intervention and regular monitoring varies, and expectations of the number and frequency of appointments differ. That said, there are facets of community supervision that seem more similar, particularly for practitioners at the front line concerned about issues of risk management and workload pressure.

This, then, is the context in which probation practitioners are supervising service users, exercising discretion and demonstrating flexibility. The particular focus of this article is on flexibility in practice, and we now explore this concept by drawing on existing literature about the experience of community supervision in Catalonia and E&W. This comparison demonstrates the extent to which flexibility is shaped by the broader legal and policy context, points to key issues about the relationship between flexibility and probation workload and highlights issues of gender and intersectionality. We first explore the perspective of supervisors before moving to consider flexibility as experienced by service users.

Things supervisors say about flexibility through a gender and intersectional lens

Empirical evidence suggests that probation supervisors view flexibility as a key component of good-quality practice. Individualisation and flexibility were key themes in the work of Robinson et al. (2014). In this study, conducted in E&W, practitioners talked about the importance of having a good understanding of each individual supervisee, an understanding which then enabled them to respond well to changes in circumstances or unexpected problems. Practitioners were unhappy with rigid frameworks for practice set by National Standards for matters like frequency of supervision appointments. One research participant in this study (Robinson et al., 2014) said:

[Complying with National Standards] is not so important to me, particularly with really chaotic [people]: trying to get them in once a week at any time is a challenge, never mind at a set time and a set date; I think you have to be really flexible. (p. 131)

An inclination to be flexible is an important characteristic in a supervisor. Relationship skills are necessary, but not sufficient, for good probation practice (Raynor, 2019), and personal qualities, such as genuineness, kindness and willingness to listen, are identified as complementing staff skills such as the ability to communicate, make assessments and plan interventions (Durnescu, 2011). Evidence suggests that supervisors who take a flexible approach to their work are more likely to build supervisory relationships that encourage compliance and are viewed, by supervisees, as legitimate (Robinson and McNeill, 2010; Ugwudike, 2010). Probation supervisors in England interviewed by Dominey (2015) described this approach to practice as ‘going that extra mile’ and taking ‘a little bit of effort on our part’.

Catalan supervisors talked about the importance of using first interviews to begin the process of relationship building (Vasilescu, 2021). It is at this point that the supervisor may learn of problems and needs that were not evident at the point of sentence. This might then lead to a request to the court to amend the original sentence. This option has proved to be particularly important for women. This is partly because of the lack of resources or community sentences designed for women; it also reflects the fact that many of the women who come to the Catalan Probation System have experience as victims of violence (Vasilescu and López-Riba, 2021) and have a need for trauma-informed support (Vasilescu, 2021, 2022). If the practitioner assesses that it would benefit a woman to attend therapy instead of, or alongside, unpaid work (e.g. cleaning or administrative tasks), the judge can be informed and an amendment made. That said, responding flexibly makes demands on staff.

This requires a lot of time-consuming work on our part and is something we are increasingly lacking. We have more and more computer work or it is also up to us to look for new entities, therapeutic entities, to realise that the person needs this change, to ask for this change and justify this well, etc. In short, I wish we had more time for a quality intervention, but it is not always possible. (Catalan supervisor in Vasilescu, 2023: 530)

Alongside the approach of the individual supervisor, there are also models of organisational flexibility in the delivery of probation work. For example, in E&W, Phillips et al. (2020) looked at the work of ‘community hubs’ – places where probation supervision takes place alongside services delivered by other agencies, often in a fairly informal environment, and offering the service user the opportunity to attend without an appointment. Staff working at community hubs argued that this way of working enabled them to avoid a ‘one size fits all’ approach to service users; staff were able to work with the unpredictable nature of service users’ lives.

Two of the community hubs studied by Phillips et al. (2020) were for women only; the flexibility of the hub approach was an important theme across all hubs but seemed particularly relevant for female service users. One member of staff, speaking about women supervisees at the hub said:

They could be more complex sometimes and things like childcare responsibilities. A lot of them are single parents so that presents barriers and financial issues. (Probation staff member in Phillips et al., 2020: 273)

This finding echoes other research exploring the use of specific community services for women offenders. For example, Radcliffe and Hunter (2013) identified that caseworkers at women’s services prioritised a flexible approach to their work, which included a readiness to see service users without fixed appointments.

While comprising a minority of the probation caseload, women are often judged to have multiple and complex needs (Annison et al., 2018; Gelsthorpe, 2022). This complexity is linked with social issues including health, housing, past or current experiences of violence, migration status and family responsibilities. The Catalan probation officer participants in the research by Vasilescu (2021, 2022) explained that women need more time and more appointments because they ask for more support and they need more space to talk and be listened to.

The authoritarian figure works with men. With women, on the other hand, the flexible, tolerant, understanding figure works. You need to be more flexible with women, more approachable. You realise that there are no excuses, absences are almost always justified. I couldn’t say the same about men. (Montse,⁴ Catalan probation officer, in Vasilescu (2022: 37))

Women form a diverse group of service users, and practitioners perceived that Roma women and immigrant women required even greater flexibility because ‘they have twice as many responsibilities, burdens and problems as other women, so we have to be aware with that too, they are extra complex cases’ (Marc, Catalan probation Officer, in Vasilescu, (2022: 32)).

Practitioners explained that they tried to work around irregular attendance, being as flexible as possible with women because missed appointments and irregular compliance were usually due to heavy burdens and domestic responsibilities:

If women have no problems, serve very well, much better than men. However, if they have children, other tasks, taking care of everyone and supporting the whole family, it is very difficult to do everything perfectly. You have to be understandable, not to decree non-compliance at the drop of a hat. It is not that they do not want to serve with the sentence, it is just that sometimes they do not get to everything and here gender is very important, the weight of gender is important. (Ana, Catalan probation officer)

Supervisors, therefore, worked in a flexible way to enable female service users to comply with the requirements of community sentences. They also argued that the lack of provisions designed for women left them feeling empty-handed and needing to work creatively to offer tailored supervision. This point was made by Berta and Gabriel, two Catalan probation officer participants in Vasilescu (2022: 37):

Sometimes I feel like we kind of owe them one, you know? It is like, since a lot of times you have to adapt to what is out there with no other options, so at least be flexible. We just have to be flexible. (Berta)

We as professionals already do everything in our power because the penal system is not as flexible and understanding of women as it should be. (Gabriel)

There is a suggestion here that flexibility might also have a purpose as defence against moral injury⁵ (Litz et al., 2009; Shay, 2014). The absence of options for women in the community leaves supervisors with a sense that service users are not getting what they deserve. Their flexibility is, in part, an attempt to provide the service that they believe is good enough.

Therefore, from the perspective of practitioners, flexibility means adapting to service users’ time availability, needs, problems and responsibilities (especially that of caring for others, especially children). As practitioners talk about the use of flexibility, they implicitly reveal some of their reasons for being flexible. The evidence in this section suggests that these reasons include flexibility as an ethical response to individuals in difficult situations or with many responsibilities, as a way of making up for deficiencies in wider social support for service users and as a means of securing compliance with community sentences.

Thinking comparatively, the similarities between the way that supervisors in the two jurisdictions think about flexibility are notable. While their practice is structured by contrasting legal and policy directives, practitioners are thinking about flexibility as a quality that enables supervision to be an effective, purposeful and just activity. The research evidence shows practitioners in E&W arguing against guidelines that hinder their ability to be flexible, whereas their counterparts in Catalonia stress the need for flexibility as a response to the complex circumstances of service users (particularly female service users) without specifically referring back to the legal framework for community sanctions.

Things supervisees say about flexibility through a gender and intersectional lens

The previous section has considered flexibility from the perspective of the probation supervisors – considering their personal approach to the work and giving examples of ways of working that support a flexible approach, particularly to work with women. This section looks at the issue of flexibility from the equally important perspective of service users, those people on the receiving end of supervision.

Vasilescu (2022) conducted the first qualitative study in Catalonia of the experiences of people serving community sentences. This study is the first in this jurisdiction to interview people being supervised in the community and is also pioneering because of its focus on the experience of supervised women. It lends weight to the argument that flexibility is viewed as important by service users as well as by their supervisors. More specifically, the study shows that the women who most value greater flexibility are those with dependent children and multiple responsibilities, immigrant women and Roma women (Vasilescu, 2021). This is clearly in line with the perception of probation officers supervising women service users outlined in the previous section.

When women are asked about their relationship with probation officers, they speak negatively about practices that are perceived as authoritarian, uncomprehending and inflexible. By contrast, they value responses that are flexible, understanding and respectful.

Look, I am lucky they changed my supervisor in the end. I was with one who I was ashamed to explain everything to, that is the truth. He was a man and I was ashamed. So, he threatened me once that he was going to decree me non-compliance because I was absent every few days or I was late, but I was ashamed to explain everything to him. And she arrived and I unburdened myself to her and she told me: “We are going to do everything possible so that you end up serving this sentence, I am going to help you”. And she helped me, she was flexible at all times. Otherwise, I would not be completing this sentence today. (Tania, Catalan service user, in Vasilescu (2021: 10))

Nora, also a Catalan service user, experienced warmth and care in her relationship with her supervising officer, something that had been lacking at earlier stages in her interaction with the penal system.

To tell you the truth, for me this woman who supervises me has been the first person since I received my punishment who has been kind to me, who has stopped to explain everything to me in detail, who has been patient with me, who has understood what it means to have two children in your care and the whole family in my care. (Nora, in Vasilescu (2021: 10))

Vasilescu’s findings echo those from other studies that have paid attention to the service user perspective. The importance of being treated with respect, listened to, given the choice about appointments and having leeway when these are missed, emerges in studies of work with women in E&W. The reverse is true too; the absence of flexibility underpinned by understanding and kindness is linked with poor outcomes.

The Prison Reform Trust (2018) investigated the increasing number of women in E&W being recalled to prison following the breakdown of community supervision. The majority of women who participated in the study (all with experience of recall to prison) spoke of loss of trust in their supervising officer, and often traced the cause of this to an absence of understanding about the many practical problems they were facing combined with an unwillingness to be flexible about appointment keeping. Similarly, women interviewed by Dominey and Gelsthorpe (2020) contrasted past unrewarding experiences of supervision with the more positive experience they were having from a specialist-supported accommodation project. Nicola⁶ said:

I’ve had quite a few probation officers but Becky’s by far the best. Yeah, she cares. You can tell it’s not just the job, you know what I mean? It’s not just to pay her bills sort of thing. She cares about the women. She’s really really good. (Dominey and Gelsthorpe, 2020: 403)

Further evidence comes from the inquiry into probation undertaken by the organisation Revolving Doors. This piece of work, informed and shaped by women and men with lived experience of probation in E&W, gathered information from more than 140 past and present supervisees. Their need for, and appreciation of, flexibility was clear. The inquiry recommended flexibility in the scheduling of appointments and in the use of online (rather than face-to-face) meetings. Participants in the study were critical of elements of probation culture that left them feeling frustrated and unheard. One said:

There isn’t respect for people coming into their appointments. When people are late there is no understanding, people do not get a chance to explain what is going on or why they are late. There is no relationship, so people don’t feel heard. (Revolving Doors, 2022: 11)

However, the inquiry also concluded that there were grounds for optimism. There was evidence of supervisors willing to work in individualised and trauma-informed ways; staff who went ‘above and beyond’ (Revolving Doors, 2022: 10).

Dominey (2015) also heard from service users who valued the approach taken by their supervisor. For example, Howard’s experience of supervision took account of his complicated circumstances. Speaking of his supervisor he said:

‘She’s pretty good as it goes. It’s good to talk to her and that. She’s quite understanding about what’s going on in my life at the moment. It’s quite beneficial seeing her. She’s quite flexible with me because I’ve got so many commitments at the moment’. (Dominey, 2015: 118)

Relatedly, Jeff’s comments reinforce the importance of the supervisory relationship as a foundation for flexibility in practice. He explained that, at the start of his time on probation, he was expecting a punitive and rigid approach. However, ‘I’ve found that when they get to know you the flexibility comes in’ (Dominey, 2015: 110).

The evidence in this section suggests that, from the perspective of service users, a flexible supervisor is the one who conveys understanding of the individual’s circumstances, wants the supervision period to be successful, and is able and willing to accept patterns of attendance that might involve irregular, rescheduled or missed appointments. Flexibility in supervision is a quality appreciated by both male and female service users, but perhaps research conducted with women in both jurisdictions demonstrates most clearly the contribution that responsive practice makes not just to the experience of probation supervision but also to the services received from other agencies (including health, housing and children’s services). For example, Annison et al. (2018) observe a ‘vicious cycle’ for female offenders, whose poor health hampered their ability to engage with inflexible and rigid support services (p. 12).

This is not to argue that flexibility is the only quality that matters in the supervisory relationship. However, when service users in Catalonia and E&W are asked about their opinions about supervision, despite the different requirements to which they are subject, they offer similar replies. Flexibility emerges alongside other traits like trustworthiness, respect, warmth and fairness as characteristics of a good supervisor.

Implications

We argue that several implications – about the relational, theoretical and organisational aspects of probation and community supervision – flow from the theoretical and empirical ideas presented in this paper and, in particular, from the opportunity to compare experiences in two contrasting jurisdictions. Supervisors in Catalonia and E&W work in different legal traditions in which community sanctions have developed in distinct ways. However, they justify their choice to be flexible in similar ways, and service users in both jurisdictions explain that a flexible approach helps them comply with and benefit from supervision. Differences at the structural level do not inevitably lead to differences at the front line.

The article’s first implication is that flexible practice is a good thing. The evidence suggests that flexibility is highly valued by service users, helps build the supervisory relationship and contributes to a sense that the supervision process is legitimate. It is also important for supervisors, although the evidence suggests a mix of motivations for the use of flexibility by practitioners. Sometimes the motivation is instrumental or practical, intended to increase the likelihood that appointments will be kept and breach action avoided. However, supervisor flexibility is also motivated by moral and relational concerns.

The evidence also suggests that, for practitioners, flexibility offers a defence against moral injury. Moral injuries are those that occur when individuals in positions of authority fail to prevent, or actively contribute to, injustice (Kleinig, 2023; Shay, 2014). Originally developed in the context of the psychological harm experienced by military veterans, the concept of moral injury has been explored in a range of settings. Probation practitioners, making decisions in critical situations, risk experiencing negative emotions (e.g. guilt, shame and stress) when they are not able to act in line with their values. Practice that is individually tailored departs from standard responses to meet the needs of service users and compensates for gaps elsewhere in welfare provision, mitigating this risk.

A second implication flowing from the evidence is that, while the concepts of discretion and flexibility are linked, they are not the same thing. Probation practitioners’ discretion is shaped by the legal and policy framework and constrained by managerial oversight. Practitioners use the discretion available to them with more or less flexibility.

Flexibility is inherently a relational concept, shaped by the ways that supervisors respond to the needs and circumstances of service users. It therefore sits alongside other supervisor characteristics that are identified in the literature about good-quality probation practice such as trustworthiness, respect and fairness. Practitioners are not equally willing to be flexible, perhaps reflecting the personal values and approach that they bring to their work. Service users know that supervisors are not equally likely to offer a choice of appointments, work around family and childcare commitments, and ‘go the extra mile’. Conceptualising flexibility as a personal characteristic rather than as a skill (Durnescu, 2011) implies that encouraging a flexible approach in practitioners requires a focus on the values and approach that people bring to their work, as well as on the arrangements for staff training.

Third, flexibility is identified as particularly important for some groups of service users. The evidence in this article is particularly drawn from work with women. For those in the most marginalised and precarious positions (such as Roma and immigrant women in Catalonia and homeless women in E&W), flexibility is identified as crucial to enabling compliance. It is clear that flexibility must be part of gender-sensitive probation practice, particularly given that women service users are often juggling the demands not just of supervision but also of childcare and insecure employment.

However, the argument of this article is not that flexibility is only relevant for work with women, but rather that lessons about good practice learned from research with women offenders are of value across the board. Training for practitioners that has a gender and intersectional perspective is not solely about improving work with women. Khan (2018) evaluated a Kenyan practice approach that drew on the recommendations of the Bangkok Rules (2011) and concluded that the gender-sensitive approach improved outcomes for women and men.

Fourth and finally, flexibility may be a personal characteristic, but it exists in an organisational and structural context, and this context has the potential to either help or hinder a flexible approach. Flexibility is a casualty of systems that do not allow enough time for reflection and care. When practitioners have large workloads, the opportunity to be flexible is squeezed. For example, appointments can only be moved if there is diary space to enable this, and appropriate unpaid work placements can only be found if practitioners are enabled to build links with suitable community groups. High caseloads and increasing concerns about the managerial and bureaucratic tasks undertaken by front-line staff are an issue in both Catalonia⁷ and E&W (HMIP, 2023; Vasilescu, 2023). Some measures intended to streamline practice and reduce the demands on staff (e.g. in E&W, standardised responses to missed appointments) squeeze out space for flexible and individualised responses.

The prevailing organisational culture is important too; practitioners are, perhaps, more likely to be flexible if they learn their craft from colleagues who model a flexible approach despite the constraints of prescribed and managerial approaches to practice. By analogy with the literature about caring organisations (Tronto, 2010), it may also be that staff are more likely to practise flexibility if they themselves benefit from a management style that reflects their domestic commitments and individual circumstances.

There is scope for further research to test all the points made above. Probation supervision remains a relatively under-researched area, with much of the existing evidence coming from a narrow range of jurisdictions. There is a particular need for research that goes beyond interviews with practitioners to that which explores their actions and behaviour. Studies that are co-produced with supervised individuals are important, and there is also value in the use of ethnographic and observation methods to understand what practitioners do (and not simply what they say they do).

Flexibility, as a characteristic of individuals and organisations, is a crucial ingredient of good-quality probation practice linked with positive outcomes for service users and staff. It deserves to be nurtured.

Footnotes

Acknowledgements

The authors are grateful to the reviewers of this article for their helpful feedback.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

ORCID iD

Jane Dominey

Notes

Author biographies

Cristina Vasilescu is a lecturer in criminology and a researcher at the University of Girona. She holds a PhD in criminology on women offenders serving community sentences. Her lines of research include community sentences, sentencing, gender and criminal justice.

Jane Dominey is a senior research associate at the Institute of Criminology, University of Cambridge. Her research interests include community sentences and community supervision, the work of the probation service and the role of the voluntary sector in criminal justice.

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Reflecting on flexibility in the probation system: Learning from Catalonia and England and Wales

Abstract

Keywords

Introduction

Flexibility and discretion for good-quality probation practice

The legal and policy framework for probation in the two jurisdictions

Things supervisors say about flexibility through a gender and intersectional lens

Things supervisees say about flexibility through a gender and intersectional lens

Implications

Footnotes

Acknowledgements

Declaration of Conflicting Interests

Funding

ORCID iD

Notes

Author biographies

References