Tuesday, September 21, 2010

Is the prison service accountable for its activities?

Introduction

This essay will focus on the activities of the Prison Service, its community of disadvantage, the means by which its activities are monitored by Parliament and her ministers, and how performance is measured by operational management.

The issue of monitoring prison activities through performance audits and league tables is examined as one measure of individual prison performance. The remit and effectiveness of the Chief Inspector of Prisons and the local Independent Monitoring Boards is also considered. A review of five annual monitoring/inspection reports on the oldest operational prison in the country is undertaken to discover their impact on prison practices. Political accountability is also examined as a response to crisis and public inquiry.

The question of prisoner's rights is considered, as is the effectiveness of the Prison and [Probation] Ombudsman in settling individual complaints and the effectiveness of judicial review in protecting prisoner's human rights. Finally, this essay will consider if existing inspection, monitoring and complaints processes are sufficiently effective in making the Prison Service account for its activities.

Special case?

There are a total of 139 prisons in England and Wales, 11 are run by private companies currently holding around 81,000 prisoners, of which approximately 4,000 are female (Prison Service 2009a). Eighty per cent of prisoners have the writing skills, sixty five per cent the numeracy skills and fifty per cent the reading skills of an eleven year old. Prisoners are thirteen times more likely to have been unemployed compared to the general population, thirteen times more likely to have been in care as a child and ten times more likely to have regularly skipped school (Social Exclusion Unit 2002 in Newburn 2007:705).

Prison relations are complex and diverse, with competing cultures and sub-cultures pressing their claims for influence and power. Accounting for such a social system where the reluctant inhabitants are wholly dependent on the state for their welfare needs including their safety and security (Sparks et al 1996) is a complex landscape of expectation, rights and obligations. Lord Wilberforce said, “... a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication” (Wilberforce 1982), and later Lord Woolf raised the concept of prisoner's “legitimate expectation” of how the state should treat them, and as Sparks et al rightly asked, “when does expectation create a right to its fulfillment?” (Sparks et al 1996:305).

Wilberforce and Woolf offer aspirational rather than codified exemplars from which the Prison Service should be held to account. As Sparks et al also observed, prisons and “their particular and distinctive features are always special cases of action, structure, power and authority” (Sparks et al 1996:300).

Parliament is responsible for the provision of laws and regulations governing the conduct and management of prisons, and it is to Parliament that the Prison Service is ultimately accountable. It delegates executive authority for the Prison Service to the Justice Secretary and monitors its performance through published inquiries, reports and recommendations from the Justice Select Committee, the Chief Inspector of Prisons, local Independent Monitoring Boards and the Prison [and Probation] Ombudsman. In extremes the government, under Parliamentary pressure, will establish specific inquiries to investigate serious incidents.

Operational accountability

Each prison is managed by a prison governor who is responsible for its day to day operations. The governor reports to an area manager/director, who then reports to the Chief Operating Officer through to the prisons Director General [Phil Wheatley] and a Prison Board; appointed by the Justice Secretary; under the legal framework of the 1952 Prison Act. The Justice Secretary, previously the Home Secretary, has the “primary authority” for prisons and the published rules which regulate and manage prisons. A revised set of prison rules was established in 1999 by Statutory Instrument (Smit 2007:567).

The Prison Service Statement of Purpose is to look after prisoners “with humanity and help them lead law-abiding and useful lives in custody and after release...” (Prison Service 2009-b). The prison service has established a mainly quantitative system of key performance indicators, targets and standards. The Performance Standards Manual which the Director General describes as “relevant”, “realistic” and a “vital part” in measuring performance (Wheatley 2004: Foreword), is aimed at “improving performance and compliance at all levels of the service”(Prison Service 2002-a). There are over 50 performance standards, measured against over 1200 key audit baselines. The results from self- audits and the biennial audits of the Standards Audit Unit are published in the quarterly performance rating table, which grades each prison between 4 [Excellent], and 1 [Poor] (Prison Service 2002-b).

Prisons with the lowest grade are seen as “failing” and may become subject to “special management measures” which can lead to a process of “market testing” and a prison could find itself being offered to the private sector (Coyle 2007: 509). This not so subtle sanction reveals an intriguing policy, for whatever the failures under public management, the authorities believe contracted-out prisons will perform more efficiently than public prisons. When the average quarterly tables for the period February 2004 to August 2008 are examined, there is no evidence that the private sector outperforms the public sector. In fact, an average of 27 (twenty one per cent) of the public prisons achieved an “exceptional” grade 4 rating, whereas only 2, (eighteen per cent) of the contracted out prisons achieved this standard (Prison Service 2002-b).

Performance tables may be appropriate to monitor the production and quality of ball bearings, where materials and conditions remain relatively constant. In a closed prison setting, simple quantitative performance data can be misleading and cannot reflect the unique dynamics between one prison and another. Such a “narrow focus on what can easily be measured” can only provide a limited glimpse of the prison estate, its manpower, and application of resources. It cannot reveal how prison is experienced by prisoners and how humanity is practised by officers (Liebling 2004:132), and nor can it adequately measure the application of discretion upon which so much matters in everyday prison life.

In 2002, the Prison Service introduced biennial surveys to measure prisoner perceptions of their prison experiences, based on Liebling's “Measuring the Quality of Prison Life” study between 2000-01 (Liebling 2004:132). Using “appreciative inquiry” techniques, Liebling invited staff and prisoners to reflect on their best rather than worst experiences. Liebling sought broad agreement between staff and prisoners on “what matters” in prison life. She discovered that “staff and prisoners produced the same set of dimensions, suggesting a moral consensus or shared vision of social order and how it might be achieved”. Her work provided a much needed interactional value model which describes and monitors that which previously appeared impossible to measure: “respect, humanity, support, relationships, trust, fairness...” which are not covered by quantitative mechanisms of operational accountability alone (Liebling 2004:146-152).

Political accountability

In April 1990, a disturbance broke out at Strangeways Prison in Manchester as a protest over conditions. Strangeways became the trigger for several other prison riots and after calls in Parliament for a public inquiry, Lord Woolf was appointed by the Home Secretary to investigate the disturbances. The 1991 Woolf Report was to bring about an end to slopping-out and a promise to rid the system of the “cancer” of overcrowding (Woolf 2008:270). It was seen as a road-map to restore decency and justice where conditions had become intolerable. Woolf sought to include an expectation of legitimacy in prisons by getting the “right balance” between security, control and justice (Woolf 2008:243), which at the time was in a “near terminal crisis of order and moral credibility” (Sparks 1994:17).

In 1992 Derek Lewis, who believed the riots of 1990 “represented the nadir” for the Prison Service, was the first non-career civil servant to be appointed Director General, and the first and only appointee personally selected by the Home Secretary (Lewis 1997:2). The optimistic ethos post Woolf swiftly changed on Michael Howard's appointment as Home Secretary in May 1993 and thus heralded the birth of a 'get tough on crime' era, when at the 1993 Conservative Party conference he proclaimed: “Prison Works”. His claim conflicted with the evidence and recommendations of the Woolf Report and the 1991 White Paper Custody, Care and Justice, which had secured political consensus as an appropriate response to Woolf, never made it into law (Lewis 1997:109 and 119).

Ministerial accountability came into sharp focus in January 1995, during a debate over the setting up of the Learmont Inquiry into the 1994 Parkhurst prison escapes. When asked, “Where does the buck stop?”, an attempt to clarify political responsibility for the prison escapes, Howard replied, “I am responsible to Parliament for policy. The director general is responsible for operational matters” (Howard 1995:col 40). This was an interesting reply, given Learmont's criticism of minsters for setting “conflicting objectives” for the Prison Service (Lewis 1997:192). This was later challenged by Jack Straw, Shadow Home Secretary, after the removal of the Parkhurst governor from operations and Howard's dismissal of Lewis following Learmont's criticism of local and national management. Straw said, “Section 1 of the Prisons Act 1952 makes no distinction between his (the Home Secretary's) responsibility for the policy of the Prison Service and the operation of that policy”(Lewis 1997 and Straw 1995:col 502).

Conditions

Over the years, prison conditions have been at the heart of many disturbances, as evidenced by the Strangeways riots in 1990. The post of Her Majesty's Chief Inspector of Prisons was established in 1981: “To inspect or to arrange the inspections of prisons in England and Wales and report on them to the Secretary of State, in particular on the treatment of prisoners and on conditions within prisons” (Ramsbotham 2005: 49). The Chief Inspector's remit is silent on “the frequency of its inspections or the content of its reports”. Inspection reports are addressed to the Justice Secretary and, by law, published (Ramsbotham 2005:55). It is through the publication of such reports that ministers can be called to account by Parliament. Ministers may suffer the embarrassment and political ignominy of defending a prison service once described as “a litany of failure and moral neglect”(Narey 2001, in Ramsbotham 2005:215).

Ramsbotham presided over 237 prison inspections (112 without warning), inspecting every prison at least once. He frequently complained to Ministers that his “minute budget was totally unequal to the task” and was overspent every year in undertaking what he described as “our inadequate programme”(Ramsbotham 2005:56). Chief Inspectors serve for five years and may have their contracts extended a further three years by mutual consent. Describing it as an “elaborate charade”, Ramsbotham's contract was not extended beyond the five years and he was unilaterally 'retired' by Jack Straw (then Home Secretary) in 2001 (Ramsbotham 2005:227-8). Ramsbotham paid the price, for exposing “apathy and indifference” among ministers and officials (Popplewell 2004).

Local Independent Monitoring Boards (IMBs) consisting of unpaid volunteers supported by an elected national council inspect prisons under a statutory remit to monitor “...the humane and just treatment of those held in prison and the range and adequacy of the programmes preparing them for release”. They must promptly inform the Secretary of State of any “concern” they might have, and prepare an annual report “on how well the prison has met the standards and requirements placed on it...”(IMB Northallerton 2007-8). Neither the IMB Secretariat nor the Briefing and Casework Unit of the National Offender Management Service keeps an audit of those concerns “promptly” reported, or the outcome of any action taken (Stephens 2009 and Moseley 2009).

To test the value of reports to ministers on improving prison conditions, a review of the IMB annual reports for Northallerton YOI between 2004-8 and the 2006 Chief Inspectors report was undertaken. Northallerton YOI, built in 1783, is the oldest operational prison in estate. Its IMB Chair vigorously condemned the practice of offenders having to eat their meals in cells with uncovered lavatories, especially when doubled up (IMB Northallerton 2004-8). In January 2006, the Chief Inspector of Prisons also complained about “unscreened” sanitation in cells and her “particular” concern about the practice of prisoners eating all their meals in them”(Owers 2006:23). Both the Chief Inspector and IMB recommended the provision of a separate dining area. In her formal reply, the minister dismissed the reports and defended the practice of prisoners eating their meals in cells with lavatories whilst doubling up, as an “operational necessity”(Eagle 2007).

Grievances and Judicial Review

The post of Prison [and Probation] Ombudsman was established in 1994 following a recommendation from Lord Woolf. As Woolf later observed, “At the time of Strangeways, justice stopped at the prison door. I regarded this as one of the worst aspects of the system” (Woolf 2008:267).

Under “Terms of Reference” from the Justice Secretary, the Ombudsman [Stephen Shaw] investigates individual prisoner grievances and, since 2004, all deaths in custody. Between 2007-08, he received 4,750 complaints, of which only 1,673 (thirty five per cent) were investigated to conclusion. The number of property complaints and appeals against disciplinary adjudications are now being “matched by complaints about regimes, allocation and categorization decisions and about risk assessment” which Shaw suggests derive from prisons operating “at more or less maximum capacity”(Prison Ombudsman 2007-08 Summary).

Prisoner's perceptions of fairness will be irreparably damaged if they feel their formal grievances are drowned in red tape and delay, and as Woolf observes, “An ineffective grievance procedure is probably as bad as no procedure at all”(Woolf 2008:267). Those who feel their complaint has been independently considered and had their views taken into consideration will have a sense of procedural justice, even if the final decision goes against them (Tyler 1990). Speaking of the complaints which are upheld, Shaw was ebullient and unequivocal, “It is extremely rare for the Prison Service not to accept or implement my recommendations” (Shaw 2009).

In 2008, Shaw failed to establish a separate parliamentary remit for the Prison [and Probation] Ombudsman and although independent from the Prison Service, Shaw continues to argue: “A reporting line to Parliament remains the best option...” (Prison Ombudsman 2007-08:4). As though to highlight the point, Shaw resigned as Chair of an Article 2, Human Rights compliant investigation on the treatment of a troubled young woman (SP) in a near-death incident following a history of self harm in custody between 2003-2005 and her subsequent transfer to Rampton Secure Hospital. Shaw accused the Prison Service of attempting “to dictate” the conduct of the inquiry and “to fetter” his independence (Shaw 2008 in EWHC 2009:13).

Bryan Payling, a former prison governor, was appointed in October 2008 to replace Shaw. The Howard League for Penal Reform (HL) applied on behalf of SP for judicial review on five grounds; the first and most important being “The investigation ordered... lacks independence” (Howard League in EWHC 2009:1). Interestingly, this was the only ground to succeed when Mr Justice Pitchford found, “that an investigation carried out by Mr Payling would fail to meet the requirement for independence demanded by Article 2” (Pitchford in EWHC 2009:111). Mr Payling must now step down from the inquiry.

In the past, the courts could intervene through judicial review to ensure Prison Service officials stayed within their “delegated powers” (Smit 2007:570). A prisoner may have been lawfully denied a right but its removal may have been unlawfully implemented. It was the process of removing the right which judicial review scrutinized, not the policy or decision to deny the right. However, since the enactment of the 1998 Human Rights Act, which requires public bodies to act in accordance with ECHR convention rights, the courts can now challenge primary legislation, and thereby “issue a notice of incompatibility” which minister must correct (Smit 2007:570).

Conclusion

Inspection and monitoring by the Chief Inspector of Prisons and the Independent Monitoring Boards and investigations by the Prison [and Probation] Ombudsman do provide an effective means of exposing unacceptable Prison Service activities. However, the evidence suggests these bodies act with independent minds, and the Prison Ombudsman is effective in resolving a minority of prisoner complaints made each year, nonetheless these bodies have little if any influence on the strategic and structural failings of the Prison Service.

Public inquiries are an effective means of holding the Prison Service to account, but only after a crisis, and their effectiveness is diminished if they propose changes which the Government finds unpalatable. After the 1990 prison riots and the subsequent Woolf Inquiry there was political agreement on the way forward for the Prison Service. Sadly this evaporated when the public spotlight moved away. Despite many improvements, the “...crisis of order and moral credibility” which prevailed in April 1990 (Sparks 1994:17) became “a litany of failure and moral neglect” (Narey 2001, in Ramsbotham 2005:215) ten years after the hope and expectation ignited by the recommendations of the 1991 Woolf Report.

While the formal processes of inspection, monitoring and investigation go some way to call the Prison Service to account, and although the courts can and do intervene on both policy and practice, it is long after harm has been experienced and damage inflicted. The predominantly closed world of a prison community is, I submit, a “special case”(Sparks et al 1996:300). It requires the means to monitor its “moral performance” as well as its operational and financial outcomes.

The introduction of “Measuring the Quality of Prison Life” surveys in 2002 provides an innovative means of monitoring the complex interactions in prison life which are central to the rehabilitative process. Regrettably, these reports have limited circulation and are not readily open to public scrutiny through which the Prison Service could be made to fully account (Liebling 2004:132).

“To no one will we sell, to no one deny or delay right or justice”
(Magna Carta 1215:40)


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